The second chapter  The historical development of the Criminal Procedure Law

 

Teaching aims and demands:By the study of this chapter, to understand the historical development of the criminal procedure law.

 

The first section  Historical development of foreign criminal law

   

A, foreign ancient impeaching procedure system and the system of divinity evidence

(a) the impeachment in litigation system and its characteristics

The impeachment proceedings, also called the accusatory procedure, is a kind of action form prevails in the slave society. In this pattern of litigation, the judicial organs for criminal behavior does not take the initiative to investigate, but the charges before trial, "don't tell" "no tell people that no trial" principle. China, Egypt, India, Rome, Europe and the UK in early Germanic law era of ancient feudal period, implement the impeachment of criminal procedure.

Characteristics: 1, private show, don't tell

     2, the plaintiff and the defendant equal legal status

     3, the judge in the negative arbitration status in the proceedings

(two) the system of divinity evidence

System of divinity evidence refers to the judge according to God's instructions, by the power of God to judge the evidence, determine the right and wrong of the system. Swear, curse, fire water instance trial is the divinity evidence system commonly used method of proof.

The general procedure of God judging: the accused was charged -- the mortgaged property -- the plaintiff to prove that the defendant is guilty evidence -- if sufficient evidence -- judgment in honest condition

   The evidence is not sufficient -- Testimony -- God judging others

Knights duel between

(three) evaluation

 

Two, foreign medieval inquisitorial litigation system and the system of legal evidence

(a) inquisitorial litigation system and its characteristics

Inquisitorial litigation system, prevalent in the feudal state, it is also known as the inquisitional proceedings, refers to the judicial organs for criminal facts regardless of whether the victim charges can be based on the form of Litigation Authority to prosecute and trial initiative. Inquisitory procedure, is the product of national totalitarianism increasingly strengthen, program church law which originated in medieval Rome, formed in Rome and empire state power gradually strengthen the Frankish Kingdom period, become widespread in the European monarchy era. "The criminal code", stipulated in the criminal procedure, is a typical inquisitorial doctrine program. During the period of feudal society of our country litigation system, also belong to the inquisitorial category.

Characteristics: 1, the judicial organ for investigation of criminal initiative

     2, the presumption of guilt

     3, institutionalization, legalization of torture to extract confessions

     4, written trial become the main way of trial

(two) the system of legal evidence

The system of legal evidence refers to the evidence of different types of evidence as well as the size of their choice and use the law, by the pre specified system.

The main content of legal evidence is the evidence in accordance with the form of classification, the evidence points to complete and incomplete evidence evidence. A complete proof of the facts of the case, judge, is to determine sufficient evidence of the accused guilty. Incomplete evidence can be used as a defendant by the criminal suspect, can torture according to. Incomplete evidence can be composed entirely of evidence.

Some form of evidence of litigation often appears in, such as confession, testimony of witness, documentary, clearly stipulates the collection and judging rules.

(three) evaluation

 

Three, foreign modern adversary proceedings system and the system of free evaluation of evidence

(a) adversary litigation system and its characteristics

1, adversary proceeding system

2, adversary proceeding system and the inquisitorial litigation system difference

(1) the prosecution and trial functions to implement separation, don't tell

(2) the presumption of innocence, the defendant is entitled to a wide range of procedural rights

(3) charges, defense, judge a situation of tripartite confrontation, the basic structure of criminal procedure

The morphology of 3, adversary proceeding system

(1) Anglo American adversary

(2) the countries of continental law system authority

(3) mixed action mode of Japan

(two) the system of free proof

Characteristics of free proof system is, the law does not pre specify various evidence and application of judgment rules. Choice and the strength of the evidence that the size, the fact in dispute, the judge and jury free judgment.

The free heart certificate classical description:

The current "criminal procedural law" the 353rd stipulation: "France in felony court adjourned, the presiding judge shall be ordered to read the following instructions, and the content of capitalized into bulletin, posted on the most obvious deliberation room: the law does not consider the judge by what way to achieve inner conviction; the law does not require them to pursue full and adequate evidence; the law requires them to be in a calm mood, mental focus, his honesty and conscience, relying on its own reason, according to defense, guilty evidence form impression, make a judgment. The law only put a question to them: have you convinced? This is their duty."

 

The second section  The historical development China Criminal Procedure Law

 

In general, the ancient criminal litigation system

(a) overview of ancient criminal law

Shun period have written code of punishing crime. According to "Shun Dian" records, Gao Shun life as Minister of justice, and will provide five kinds of corporal punishment utensils carved on the promulgation of the world. And strict law enforcement, has a very good social effects, the criminal procedure law should also be quite complete. Zhou Dai has a criminal record. The criminal procedure called "prison", "civil litigation has become a lawsuit". The two trial, five listen to the system and the use of evidence, documentary evidence. Wei in the Warring States period "by" in the prison law, catching method two. To the Sui and Tang Dynasties, to standardize the procedure of a more comprehensive, system in ancient law. Sui kaihuang law "" in "" prison break "Dou song", such as specified by the inquisition, hearing procedures. The Tang Dynasty "Tanglushuyi suspected" procedure stipulated in the "centralized bucket lawsuit", "arrest", "prison break", later dynasties use does not have the too big change.

(two) features of ancient Chinese Criminal Procedure Law

1, to Confucianism as the ideological foundation of Criminal Procedure Law

2, the judiciary and the administration is not divided, administrative officer of Justice

3, the entity and the procedure is not divided, criminal and civil litigation is not

4, implement the inquisitorial procedure, legalization of torture

5, with the cautious punishment prison judicial spirit

 

Two, the evolution of modern criminal procedure law

(a) the system of criminal procedure

After the Opium War of consular jurisdiction right. 1902 years, Wu Tingfang Shen Jiaben to amend the law minister. To amend the law according to the Qing Dynasty, the law. Formulated the "criminal and civil procedure law of Qing", "Dali school", "the trial method each trial chamber experimental regulation", "criminal procedure law draft". The demise of the Qing Dynasty and not implemented.

(two) the period of the Republic of China Criminal Procedure Law

In 1912 the Nanjing provisional government two constitutional documents stipulated in the criminal procedure system principle: "provisional government", "outline of the organization of the provisional constitution of the Republic of China". In 1912 April the establishment of the Beijing government, which the "draft" and "articles of association". 1921 promulgated the "law of Criminal Procedure Ordinance". In 1928 the Nanjing national government enacted the statute book.

Three, the emergence and development of the people's Republic of China Criminal Procedure Law

(a) during the period of new democratic revolution of criminal procedure law generation

(two) the period of socialist revolution and the establishment of the legal system of criminal procedure

(three) "Criminal Procedure Law of the people's Republic of China" China modification

 

The focus and difficulty of teaching:"Criminal Procedure Law" of the people's Republic of China to develop and modify.

Question:

    1, introduces the foreign criminal procedural mode?

   2, the evolution of foreign criminal evidence system?

   3, the legal system of ancient criminal litigation of our country characteristics?

   Amendment and revision of 4, the China's "Criminal Procedure Law"?

Reference material.

    1, [Germany] Ladd Bruch: "Introduction to law", M Health et al, Chinese encyclopedia press, 2003 edition.

   2, [America] John. Henry. Merryman: "civil law", translated by Gu Peidong, publishing house of law, 2004 edition.

   3, Li Jiaofa: "Chinese litigation law", Chinese procuratorial press, 2004 edition.

4, Wang Jiancheng: "source of the criminal procedure", "legal forum", 2000 first.

5, Xie Youping: "mode" of criminal procedure in historical perspective and cultural context, "Journal of Fudan University (SOCIAL SCIENCE EDITION)", 2003 fourth.