On The Right To Choose Procedures In Criminal Proceedings

The criminal justice process of the modern rule of law countries increasingly respects the subject status of the prosecuted,the right to choose the procedure based on the principle of procedural subjectivity is the best embodiment.Giving the prosecuted the option of the procedure has the theoretical significance of further implementing the principle of balance between prosecution and defense,enhancing the status of the prosecuted litigation subject,promoting procedural justice and practical significance of satisfying the diversified interests of the parties,improving litigation efficiency,enhancing the acceptability of criminal judgment results.However,China’s criminal litigation legislation does not explicitly give the prosecuted the corresponding procedural choices.This leads to the fact that the prosecuted in practice only has the right to consent to the procedure,resulting in insufficient voluntary support for the prosecuted procedure.Although some scholars in our country have studied the procedural choice of the prosecuted,the difference in the background of the times is limited to the study of summary procedures.Therefore,this paper will further analyze the current situation of the procedural choice of the prosecuted in China under the background of the confession and punishment process is fully rolled out,draw on the useful experience outside the domain and evaluate its local adaptability,and provide suggestions for constructing the procedural choice of the prosecuted in China.In addition to the introduction,the article is divided into three parts,the total article is more than 34,000 words.The first part studies the theoretical basis of the procedural option of the prosecuted.The option of the prosecuted procedure means that the prosecuted has the right to initiate,agree or change the relevant procedures and procedural matters within the scope permitted by law on the premise that there is a parallel procedure that is functionally equivalent.The procedural option of the prosecuted has four characteristics of the voluntariness of choice,the finiteness of choice,and the advancement of the choice is the legislative procedure that sets the function to be quite optional and the effectiveness of the procedure selection is to activate or change related procedures.The procedural choice of the prosecuted can be divided into a single procedural option and a compound procedural option,the choice of the trial procedure and the choice of the trial method,the full procedural choice and incomplete procedural choice according to its specific content and degree of restriction.Giving the prosecuted the option ofthe procedure is an inevitable requirement for further implementing the principle of balance between prosecution and defense,enhancing the status of the prosecuted litigation subject,and improving the litigation effectiveness.It is conducive to meeting the diversified interests of the parties and solving the practical needs of many people.Improve the conviction and acceptance of the outcome of criminal cases.The second part analyzes the problems and causes of the choice of the prosecuted in China.Judging from the current legislation,there are two problems in the procedural choice of the prosecuted in China: First,the procedural choice of the prosecuted is “incomplete”,only the negative procedural consent and limited change.Second,the voluntary protection of the prosecuted exercise of the option of the procedure is insufficient.On the one hand,the reasons for the above problems are the influence of traditional litigation culture such as power supremacy,group standard view and flexible procedure view,which leads to the weakening of the prosecuted litigation subject status.on the other hand,the supporting system is not supported,mainly in Insufficient protection of the right to know,limited assistance from duty lawyers,and lack of effective interrogation mechanisms during the investigation phase.The third part proposes to improve the procedural choice of the prosecuted in China.In our country,the procedural choice of the prosecuted should be established and guaranteed in accordance with the principle of limited choice,the principle of limited repentance and the principle of effective assistance and choice.Specifically,to improve the procedural choice of the prosecuted in China,we should start from the following aspects: First,the legislation clearly gives the prosecuted the right to choose the procedure.The second is to give the prosecuted a "complete" procedural option,so that it has the right to move the procedure and the effective procedural change.The third is to improve the supporting system of the prosecuted procedural choices,including defining the objective criteria for voluntary choice of the prosecuted procedure,ensuring the right to know of the procedural choice of the prosecuted,ensuring that prosecuted obtains effective lawyer assistance and the court choose a substantive examination in the voluntary of the prosecuted procedural choices.