The Turn Of Criminal Justice In China From The Perspective Of Intersubjectivity

The subjectivity theory indicates that human,as the activity subject,obtains the consciousness,autonomy,initiative and creativity in the interaction with the object.Simply speaking,it refers to human's esteem,personality and everything under ideology.The intersubjectivity theory indicates that in the premise of admitting people's "subjectivity",in the world where multiple factors exist,the subjects have positive communications and dialogues under the ethical and moral framework of "respect,tolerance and honesty",and finally reach balance and consensus.When the subjectivity theory of philosophy field is applied to the criminal justice field,it creates the criminal justice subjectivity theory.It aims to admit,guarantee and respect the subjectivity status of citizens and the parties concerned in the construction and operation of the criminal justice system,allow them to give play to their subjectivity to the construction and operation of the criminal justice system in an effort to fully guarantee and realize the legislative and juridical value concepts.The creation and application of criminal justice subjectivity theory help arouse,guarantee,realize and exert man's autonomy,initiative and creativity.However,if overemphasized,the theory does have its limitations.Concretely,"the independence of procedural subject" and "antagonism of procedural subject" that appear in the criminal justice litigation process are difficult to fully adapt to the dramatic changes in today's society.And the intersubjectivity theory came into being at the right moment.The juridical negotiation emerged in western countries is featured by intersubjectivity theory factors,and in this context,"to seek for consensus and cooperation" has become the mainstream orientation of China's criminal justice in the new era.We must respect and adapt to the development changes.Although the subject proceedings of traditional criminal justice maintains human rights,they failed to pay attention to the repair of social relations.However,under the construction of "intersubjectivity" philosophical thought,a new-type litigation mode-the criminal juridical negotiation system,makes up the above defects.It not only follows the subjectivity theory principles of "equality,voluntariness and legality",but also proposes the principle of "interest balance of diversified procedural subjects".While ensuring the subjectivity's self-discipline,autonomy and freedom rights,it also highlights the value element of multiple intersubject negotiation such as "respect,tolerance,participation and honesty".It is also practiced in related systems of domestic criminal procedures,such as "tainted witness","lenience for pleading guilty and punishment" and "criminal reconciliation".The criminal juridical negotiation system is a mechanism which can contain diversified procedural subjects,create an atmosphere of respect,tolerance and positive participation where subjects frankly communicate with one another,equally talk with each other and finally reach a "consensus" result.Such a negotiation mechanism is favorable for solving disputes through determining the ownership and also conducive to returning to the society..At present,the negotiation system in criminal procedure is still at the starting stage in China.It has to be further perfected in both basic theory and practice.