Abercrombie France,Criminal Procedural Law Studies

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Criminal Procedural Law Studies in Contemporary China: The Evolution and Future of Style

Key words】 Criminal Procedure Law School / Research Style / Evolution / Future ... ... number of years of generations to rely on contemporary Chinese Criminal Procedure Law in the breadth and depth of research and have taken great strides. However, standing calm and objective point of meditation, such as careful construction of the theoretical system,[link widoczny dla zalogowanych], the basic areas of precision, scientific and academic norms and many other issues remains a constraint for the further development of theoretical research in Criminal Suit All styles and theoretical research is closely related to innovation and breakthrough. This paper tries to contemporary China (referring to mainland China after 49 years) of the Criminal procedure-style theory of evolution as the main line, on the basis of a brief review outlines the context of its future development, to question to my colleagues. One past the In accordance with the domestic general point of view, this range roughly covers the study of the Criminal Procedure Law of New China establishment and initial development period, the Depression, recovery period of development. Looking at the theoretical writings of this period, roughly showing the two major characteristics: first, imitative. After the founding of the well-known reasons, the new Criminal Procedure Law of China's first group of Scholars who have received specialist training in the former Soviet Union, the first draft Criminal Procedure Law, Department of imitation of the former Soviet Union's legislative system, which was compiled a large number of the first teaching materials learn and absorb the contents of the former Soviet Union-related materials, therefore, for a long period of time, the Criminal procedure theory of deeply marked by the stigma of the former Soviet Union Theory in Criminal Suit. The second is adaptive, that is, with the planned economic system and the centralized political system to adapt. Until the mid-80s, despite the political and economic system reform has been carried out together, but the country's overall economic and political structures are still with the great unification of planning, concentration. Confined to the relationship between economic base and superstructure of the traditional theory, when the Criminal procedure legislation and theory are the established institutions for the promotion and maintenance of services, from content to form no exception. Correspond with the above characteristics, the Criminal procedure in the style of the main theoretical research showed: (a) the ideology of the ideology of our study is the study of law, the starting point and destination are in class On the struggle for the center. The time,[link widoczny dla zalogowanych], ideology constitutes a discipline Kuhn called the This pattern followed the Vischinski etc. on the concept of law, its theoretical default is: law is a manifestation of the will of the ruling class is to safeguard the interests of the ruling class service, in addition, Law no other function, even if there , ultimately the interests of the ruling class to maintain the service. In this model the former Soviet Union in the Context of Law, known as as the main research methods. 50,60 do not have words from the writings of the age, even the mid-80s after the Cultural Revolution, compiled mostly textbooks for not out of the cocoon, the bourgeoisie, as many textbooks mention the criminal procedure law to rule that it is the bourgeois a tool for dictatorship and the socialist Criminal Procedure Law are essentially different, therefore, their function and role is not the same can not be confused with each other and so on. According to the evolution of a rational point of view , any kind of system, the concept of universal adherence to long-term, there must be the context of the reasonable, therefore, be an objective analysis of class analysis, it can be one of the methods of theoretical research in Criminal Suit because it is in essence a conflict between interest groups and against the theory to explain the legislation and judicial practice of the Criminal procedure, which of course has a positive social science point of reference and basis. However, the exclusive dominance of class analysis is very harmful, it ignores the traditional legal analysis of the other theories. In fact, according to Marx, So, just go with the ideological point of view analysis, often lead to a lot of departure from the academic consequences of their own. One of the consequences is the tendency to politicize academic research. Because class analysis is closely related with the political struggle became the most important research under way, so do not use on class analysis, no attention will be labeled a Controversy is the key link to a high degree of political struggle, the basic academic freedom can not guarantee a more in-depth academic study of the question, many academic debates before the Cultural Revolution (such as the presumption of innocence, judicial independence of the discussion) into a political struggle The facts have a profound illustration of this point. The second consequence is that a legal interpretation, construction and operation of the legal process of a right to ignore the people, focusing on the power play of the absolute concept of crime control and justice model Advocating. Because the struggle of class analysis in the philosophy of The third is to bring heavy consequences of physical, light program Since the Criminal Procedure Law is to safeguard the interests of the ruling class, is the cut,[link widoczny dla zalogowanych], the enemy is down the process has become the second best thing. In this way, the end result of everything physical, procedural justice, the independent value and internal ignored, programming tools and procedures of nihilism was born. This view of the previous works on the common. (B) Notes of the comments of Law School has a long history and profound influence on any one sector of research and development of law can not be separated even for a moment to describe the use of the comment type of method . It implies the theory of default: in fact any kind of viable system for the people must first understand the need to prove himself in the intellectual legitimacy and feasibility. Through the analysis of articles, tagging, interpretation, informative,[link widoczny dla zalogowanych], look for micro-Probing, the basic theory of law was able to carry out and in-depth, study the criminal procedure law is no exception. Since the founding of the PRC, especially with the 79-year enactment of the Criminal Procedure Law, Criminal procedure scholars on the comments of the use of methods to reach a peak. Various papers, textbooks, monographs using the annotated method, the criminal procedure law of 79 years to start a multi-angle, multi-layered three-dimensional interpretation; or layman, a referendum on the popularity of criminal procedure publicity; or comprehensive system to Criminal Procedure Law preparation of teaching materials based on the style to carry out legal education; or Bogut of this, in the affirmative on the basis of the relevant provisions of the Criminal Procedure Law to propose specific action recommendations to guide judicial practice. During this period of the hundreds of comments, fill volumes, notes the Criminal procedure Act therefore became the most frequently used theoretical study, the most common research styles. Should be noted that annotation of research methods, for the popularization of Criminal Procedure Law, Law for the early education and the future in depth theory has played an important role in the judiciary itself, quality is not high, the need learning in the context of legal knowledge, judicial practice guide for more credit. In the past, present or future, Criminal procedure notes methods are one of the basic theory, research methods with other irreplaceable role and status. However,[link widoczny dla zalogowanych], the comments are often degenerated into a purely legal concept of law, the concept of heaven (Garling language) self-construction and anesthesia, without regard to the practice of law. At the same time, because by the ideological influence, comments tend to the conservative Law and lost Reflections on the Study of Law and the critical spirit. So, using this method of layers is limited, note method edition, p. 64.) because the purpose of theoretical study and the task is to explain and demonstrate the significance and legitimacy of existing systems, more importantly, for reflection and critical, prospective study to indicate the direction of future development of society. With further research, which calls for achieving a breakthrough on the study and distillation of the style, only this, the character of the Criminal procedure theory can be promoted to a higher level guidance in the legislative and judicial practice. Second, the status quo the deepening of reform and opening up the expansion of the national democratic politics has improved steadily and gradually establish a market economy, the objective of the Criminal procedure legislation and the theory put forward higher requirements. In this background, academic colleagues through the tireless efforts of the Criminal procedure theory old, traditional style gradually being broken, new research style is emerging. Since the mid-80's from this transformation and transmutation mainly as: (a) type of reform measures with the objective situation the development of the criminal procedure law in the judicial practice of 79 years, a series of problems exposed NPC Standing Committee for this purpose by a number of special amendment to the law, but this technology can only be achieved at the level of patching local needs, a large-scale legislative amendments is imperative. At this point, the Criminal Procedure Law to take up the academic theory of the task ahead, a revised Criminal Procedure Law Center to research activities from the late 80's since launched nationwide. At this point the academia, in the doubly legislation and theoretical research attention, and held several international academic seminars, inviting foreign experts to give lectures, translated and published a large number of foreign Criminal Procedure Code; they do not rigidly adhere to capitalist society the only class of names put forward for such non- Crime presumption, right to silence and other Western Criminal procedure system should be bold and learn the specific absorption, and focus on the world development trend of the Criminal procedure legislation, proposed amendments to weaken China's Criminal Procedure Law should be stronger in terms of doctrine on the basis of factors, a substantial absorption of party doctrine series of practices and so on. Research focus during this period, although the change of styles directly out of and practical value can not be underestimated. It is in this discussion, the overall theoretical knowledge Criminal procedure scholars have improved the breadth and depth of research questions have been an unprecedented expansion, it is also during this period, the birth of a and demonstration (B) compare the type of social sciences, comparative studies are more common pattern, there are advantages and disadvantages compared to points, see the length. It should be said in the previous theoretical study of the Criminal procedure, comparisons are also often mentioned, and the use of scholars, but the comparison was too shallow, superficial, the range is very narrow, and because the arguments are not sufficient, the conclusions are often too biased can not be convincing. As many of the socialist capitalism Criminal Procedure Law Criminal Procedure Law and compared to the presumption of innocence abroad, and our The Here we are talking about comparative study is a comprehensive, multi-dimensional observation of contrast, both the system level, the level of good or bad, pay more attention to the concept of in-depth cultural background, social psychology, history, tradition , Comparison of national habits and other aspects of dialysis. From the breadth of view, both prospective comparison of ancient and current, more or China and foreign countries, common law and civil law comparative; from the depth of view, panoramic view of both macro-like look, but also close-up of micro- like control. From the theoretical achievements, both some of the material in the form of comparative criminal procedure, a monograph, such as Chen in the editor of the Introduction to Law the original theory of criminal justice In addition, motivated by the comparative study, the period of the Criminal Procedure abroad, Criminal Procedure Code have also been translated and published in succession. Should be said that comparative study of the prosperity of the Criminal procedure objectively enrich the theoretical study of the types and methods, broaden our horizons, so that we can compare more clearly seen in the gaps and problems, while but also through foreign exchange, import and absorption of foreign outstanding achievements of our more inclusive theory, which greatly promoted the Criminal Procedure Law to learn to move forward. Course, this comparison still is not enough, because our scholars have so far failed for a long period of foreign judicial system, the deepening of close observation, theory and understanding of foreign Criminal procedure is not specific, lack of foreign Criminal procedure scholars first direct in-depth, specific and detailed exchange and discussion, so we grasp of foreign and institutional theory to a considerable extent, hooded, and look. Moreover, the system of support for the various background factors we also know much about, and this lack of understanding of the reference proposition, the introduction of foreign to the system of the harm likely to be fatal, because it will directly lead to the consequences of the South Orange North trifoliate . (C) of the Criminal procedure empirical study of theoretical research material and objects from the judicial practice, the close attention of the judicial practice and deep experience to enduring theoretical study to give vigor and vitality. For a long time, longer than the comments of our theory in practice style and short style, in the based, and the lack of perceptual experience of understanding the premise (which, of course with the long-term Thus, theoretical research in solving practical problems are often nowhere near enough, too pale. Change this situation requires the majority of workers in both the understanding and control theory of sociology, anthropology, empirical research methods, but also a high degree of awareness access to these means and tools, the expression of the traditional discourse, namely: to truly in-depth practice and extensive research, using scientific methods to collect and organize first-hand material, to write the results of weight. At present, this area there have been some welcome changes in the judicial reform has gradually in-depth background, some scholars the grass roots, try to approach anthropological fieldwork material collected and published a number of corresponding with a higher academic value of the paper, by improving the grass-roots courts committee, set up the system of pretrial discovery close to the actual reform measures. (D) of the Boom multi-disciplinary research with integration between disciplines, increased penetration of the increasingly sophisticated division of labor discipline developed in a variety of theoretical study led to the edge of the emergence of cross-science. And this trend echoes many theorists Criminal procedure scholars have begun to try to learn from other social science and even the introduction of the natural sciences research spectrum, such as on economic analysis of law is one example. Economic analysis of law (Note: Posner, R. A: The Law and Economics Movement, AER papers and ; Proceedings, May 1987, P.4.) currently, the use of knowledge of economics, legal issues in the country is in the ascendant, as if already developed into a separate edge of the Some law and economics as foreign artists such as Richard A · Posner, Ronald M · Buchanan, Friedrich von Hayek and other work has been translated and published a large number of domestic law in many circles researchers began to use economics - that in modern society is seen as more appropriate methodology (Note: Veljanovski,. CG: The Economics Approach to Law, Butterworths , 1981, p.3.) in the Theory and tools for analysis and writing. Vocabulary of economics, such as a large number of inputs and outputs, costs and benefits, production and consumption, the marginal benefits and transaction costs, resource allocation and resource shortages are being widely used in transplantation and research in various fields of law, criminal procedure law research is no exception. I have pointed out that criminal justice is also a large consumption of the process of social resources in the social context of limited supply, in order to better suit the task to complete, must be reasonable allocation of judicial resources, efficient use of existing judicial means, the pursuit of litigation efficiency improved. (Note: See Left Man: economic principle of action, (Note: See Long Zongzhi: economic point of view, the method of the problem, propose solutions. In this regard, many scholars have made bold attempts at action mode of the Summary Procedure, litigation and other aspects of control means the research results. Multidisciplinary research Criminal procedure although theoretical study has just started, but its influence can not be underestimated. It broke the shackles of traditional theories of style and deepen people's understanding of the litigation activities will surely contribute to the development Science Criminal Procedure Law. Third, forward-looking realistic soil stood, overlooking the future of Criminal Procedure outlines and study style and related academic standards, research types, we look forward to: The Future of the Criminal procedure continues Changyang personality theory, encourage diversity of thinking, the tendency to reject mediocrity and kitsch, Philosophy of Law, Law of sociological analysis, multivariate study further in depth. Specifically, it should be developed in the following areas: (a) empirical studies of Sociology With the recent revival of Sociology in China, some scholars have begun to use the method of Sociology of litigation. Jurisprudence (especially legal scholars) gradually on Weber, Durkheim and other sociologists have in-depth understanding of the theory. Fieldwork by the impact of recent years, law experts have started fieldwork. True sense of the empirical investigation is a very arduous and painstaking work, one needs systems, policies, physical and other objective aspects of technical support and, more scholars in the intellectual needs of the unremitting efforts. Over the past that taste is only a quick walkthrough of research, or fashion, join in the fun of the Theory not only can not provide Of In recent years, many scholars on this issue so-called empirical studies carried out, conclusions are often exactly the same, when most of the causes mentioned in the impact of the legacy of the feudal society, the judiciary is not high quality, objective material conditions of scarcity, lack of supervision, etc., nothing more than the mention of measures to eliminate the influence of feudal legacy and improve the quality of judicial officers to improve investigation of the physical conditions and strengthen supervision within and outside the few, while the torture in the mentality of both parties, social tolerance, and many of these phenomena to crucial issue of the lack of thorough and meticulous investigation, the result is a serious gap between theory and reality: no matter how high-profile scholars have called for elimination of torture, and has ideas, think of ways is still repeated judicial practice, the problem is serious. Another example of

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