Xiong Qiuhong: revision of the criminal procedure law should be based on protection of human rights as the core

1979Years7Month1Day, the National People's Congress passed the China's first law of criminal procedure,1996Years3Months to complete the first amendment.1998Years10In August, China signed the "International Covenant on Civil and political rights", aroused the re amendment of criminal procedure law of ripples.2000Years9Month, the NPC Standing Committee to carry out the criminal procedure law enforcement inspection, it was found that the "extended custody", "torture to extract confessions", "defense lawyer to" three icebergs to melt.2003Years3Month, the National People's Congress of the people's Republic of China by "constitutional amendment" to "the state respects and protects human rights" in the constitution, played a important role in re amendment of criminal procedure law.2003Years10Month, the ten NPC Standing Committee to the revision of the criminal procedure law on the legislative agenda.
    At present, the research activities on the revision of criminal procedure law's legislature is wildly beating gongs and drums to; academia is busy drafting various modifications, thought that the revision of the criminal procedure law ideas; practice in the research and the revision of the criminal procedure law related issues, after all, the revision of the criminal procedure law involves re the assignment of state power; while the public for human rights on the punishment of crime and protection of attention, also joined the discussion and revision of the code of criminal procedure.
    To raise a Babel of criticism of controversy, we can clearly hear two different discourse: one is the revision of the criminal procedure law should draw lessons from foreign experience, in accordance with international standards, strengthening the protection of human rights, the pursuit of justice; the other is the revision of the criminal procedure law should be based on national conditions, recognizing the crime is rampant, intensify the crackdown, the maintenance of social security and stability. The two view give tit for tat. This collision is a long-standing topic, namely the criminal punishment of crime and protection of human rights conflict problem.
    The punishment of crime and protection of human rights is a main line through criminal procedure, any country's criminal litigation system is always moving forward in the coordination of two. In the field of public law, from the evolution of arbitrary justice to judicial procedures are considered to be major changes in legal history, criminal procedure itself by the protection of human rights is the basic kernel. Because, if only the pursuit of criminal punishment of crime, then, abandon the shackles program is the best choice. In the criminal history, there have been all kinds of be brutal and inhuman means to gain the defendant's confession, in order to find the facts of a case example. The modern criminal procedure prohibits torture to extract confessions, prohibited use unscrupulous divisive tactics, whether real, excluding the cost of non. This requirement for criminal proceedings to achieve the purpose of criminal punishment is the bottom line.
    Some scholars of the criminal procedure law called the seismometer constitution, this is mainly because the criminal litigation caused serious interference in the fundamental rights of citizens. In the criminal process, the detention, arrest, search, seizure and other coercive measures, which poses a great threat to the citizen personal rights, property rights; the defendant once convicted, will face serious consequences were deprived of their liberty, property and life. In criminal proceedings, specialized state organs if abuse of power, will cause the citizens basic rights guaranteed by the constitution to become a mere scrap of paper. Because, in the specialized state organs abuse of power, anyone can become the object of criminal prosecution, the victim may be criminal proceedings. Thus, it is not difficult to understand why the law of criminal procedure is known as "the application of constitution", "constitutional law", "rule by law of the Great Charter" and so on appellation.
    Criminal procedure in criminal prosecution as the beginning, in order to realize national criminal jurisdiction for the purpose, this is self-evident requirements. Focus of modern criminal procedure is the device preventing the establishment of national criminal prosecution, punishment, to prevent abuse of the right to civil rights have been violated. Therefore, the punishment of the crime shows more recessive purpose of the criminal procedure, and the human rights protection is the dominant program requirements. International standards of criminal justice explained the basic requirements for criminal procedure system in protecting the rights of the accused, it aims to safeguard civil rights as the basic scale evaluation and understanding of criminal litigation system, to avoid impairment due to the need to punish crime charged with criminal offences, obtain the right to a fair trial, in order to avoid the waste of penalty innocent as the cost to achieve the purpose of crime.
    In criminal proceedings, the prosecution and the defendant in the balance of power imbalance inherent. Criminal charges as the accused object, their interests are vulnerable to specialized state organs damage. On the one hand, specialized state organs because of crime news, easy to infringe the rights of individual citizens; on the other hand, the prosecution rights violated for easy access to the default public psychological damage, because the minority interest is designed to protect the most people. Guarantee the rights of the defendant in criminal lawsuit, embodies the "relief most in need of relief" principle, reflects the protection of minority.
    In China, people often will "human rights" broadly understood as: (1) the general protection of the legitimate rights and interests of citizens, namely through the punishment of crime to prevent violations of the general interests of citizens by criminal (2) to protect innocent people from criminal prosecution (3) security of all participants in the proceedings, in particular the victim and the defendant's litigation rights are fully exercise (4) make the guilty man received a just punishment. The general protection of the legitimate rights and interests of citizens as the most important part of human rights protection, the protection of fuzzy difference between majority and minority protection in criminal proceedings. In the field of criminal procedure, the public power (appear to protect the most people face the conflict between individual rights) and extremely highlight. The basic spirit of criminal law lies in the restriction of public power, prevent the tyranny and corruption, in order to maintain the dignity of citizens as autonomous subjects. Therefore, the rules of criminal procedure setting actually to protect minority basic starting point. As USA scholar Ronald Dkin said: "we build constitutional theory which is the basis of the government is not a simple majority theory, constitution, especially the bill of rights, is designed to protect individuals and groups, as opposed to most citizens may have to make decisions, and most people think of, it is the society and the common interests of decision". In China, criminal procedure to protect minority significance have not yet been fully recognized. On the contrary, in China's traditional legal culture, there are ingrained minority interests should be subordinated to the interests of the majority of the idea, this is an important reason why the priority of punishing crimes long.
    For a long time, "heavy blow, light protection", "heavy entity light procedure, judicial practice" concept and phenomenon prevalent in china. In recent years, the punishment of crime and protection of human rights "balance theory", entity justice and procedure justice "and" theory has gradually become the theory and practice of the mainstream discourse. However, the "presumption of guilt" complex did not disappear from the scene, for heavy quick attack crime voice can be heard without end, and the strong voice to "conditions" as the basis of the most powerful. Indeed, the revision of the criminal procedure law should be based on national conditions, however, "conditions" should not be condoned abuses, we indulge in miscarriages of justice shield. The Du Peiwu case, She Xianglin case, Nie Shubin case of successive exposure has sounded the alarm. In the revision of the criminal procedure law, shall properly handle the penalty crime and the safeguard human rights, focus on solving outstanding problems in judicial practice, the construction of criminal litigation system to protect human rights as the core.

Reprinted from Chinese law net

The authors introduce: Xiong Qiuhong: female, Hubei Province, Tianmen,In 1988 graduated from the law department of Peking University, bachelor degree of law. 1991 - 1996 enrolled in the Graduate School of China University of Political Science and Law, received a doctorate of law. 2000 May - November, as a visiting scholar in Norway human rights research; in 2005 April - June, worked at Max Planck Institute of foreign criminal law and international criminal law in China EU cooperation project. Since 1996, the work in the study of law China Academy of social sciences. Now for the law study China Academy of Social Sciences, the procedure room vice director, Professor, master's tutor.
    In the comparative study of "criminal law" (France), "Chinese law", "law", "Tribune", "Law Review" and other domestic and abroad published more than 30 papers, among the more influential papers including "China criminal judicial system reform prospects" (1995), "criminal procedural law's revision of" (1995), "on the criminal defense system on the basis of the theory" (1996), "the lawsuit value analysis of the criminal defense system" (1997), "the British criminal proceedings against the illegally obtained evidence processing analysis" (1998), "justice and citizen participation" (1999), "interpretation of the right to a fair trial -- from the criminal justice perspective" (2001), "Reflections on criminal standard of proof in criminal proof -- in view of the possibility and certainty" (2003).
    Personal publishing monographs two: "the criminal defense theory" (Law Press, 1998 edition) and "transformation of the criminal procedure law" (Peking University press, 2004 edition). In addition, also participated in the "people's Republic of China criminal litigation amendment and demonstration", "the United Nations Criminal Justice Standards and China criminal law", "Criminal Procedure Law", "the implementation of the criminal investigation procedure of criminal proof theory", "" and other monographs Writing, participated in the preparation of "China encyclopedia" (law volume) and institutions of higher learning "Criminal Procedure Law" teaching.
    Research results have won numerous awards, including the China law procedural law in youth outstanding research achievements, the first prize two, the Ministry of education law books, Beijing city won the first prize of excellent achievements in philosophy and social science department of justice special award, outstanding paper award, China Academy of Social Sciences outstanding achievement awards and countermeasures.