On The Judicial Logic And The Practice Correction Of Overcriminalization

The Third Plenary Session of the 18th CPC Central Committee set "advancing the modernization of China’s system and capacity for governance" as the overall goal of comprehensively deepening the reform.Criminal governance,as a key area of national governance,must be modernized in the reform.An important step in this is to coordinate the scope of criminal law regulation in the process of social development and modernization.Several amendments successively introduced in recent years have expanded the criminal law with a relatively large amount of space.In practice,the number of conviction and sentencing has continued to rise,and social governance has shown the phenomenon of"overcriminalization".In the literal sense,"overcriminalization" seems to be a purely substantive law issue.It discusses the issue of regulatory cross-border caused by the expansion of criminal law legislation.However,in terms of the dynamic process of social governance,"overcriminalization" should be the result of comprehensive action.The comprehensiveness of this action is reflected in the combination of substance and procedure,and the balance between legislation and judiciary.Existing researches on"overcriminalization" are mostly based on substantive law itself to explore whether the existing legislative trend should continue to expand,while this article analyzes the role of criminal procedure in the formation of overcriminalization from the perspective of procedural law,and try to propose corresponding corrective measures.This article consists of four parts:The first part is the theoretical definition of overcriminalization.Firstly,the concept of overcriminalization is defined based on the understanding of overcriminalization both inside and outside the domain.Secondly,it analyzes the formation process of overcriminalization.On the premise of the existence of "criminal law circle",the continuous accumulation of local transgressions results in the expansion of the overall perspective.The second part analyses the litigant harm of overcriminalization.From the perspectives of cost efficiency,human rights protection,legal system and national governance,this part expounds the deviation from the value of litigation efficiency,infringing the human rights of the accused,invading the scope of civil law and administrative law,deviating from the requirements of modernization of governance.The third part explores the procedural law causes of overcriminalization.Criminal governance is the result of the joint action of substantive law and procedural law.It is defined as a crime in substantive law,and it needs to complete the entire criminal procedure before it can be truly identified as a crime.However,criminal procedure in China as a whole lacks a systematic and effective filtering procedure,so that most perpetrators have been successfully convicted.The specific manifestations are the lack of filtering effect in the investigation stage,the low possibility of filtering in the prosecution stage,the poor diversion effect in the trial stage,and the unfairness of practice circulation.The fourth part propose practical corrective measures for overcriminalization.This part proposes corresponding correction plans for the procedural law reasons analyzed above,mainly including trying to give filtering space in the investigation stage,further improving the non-prosecution system,strictly regulating the making of judgments at the trial stage,strengthening the judicial responsibility of case investigators,so as to form a practical and effective filter mechanism to achieve effective judicial restrictions on criminal governance.