On The Reasonable Scope Of The Crimes To Be Handled Only Upon Complaint

The crimes to be handled only upon complaint are the special phenomenon of the continental law system. In this paper, through legislation research, comparative study, empirical research method, historical research method etc., this thesis aims to discuss the reasonable range of the crimes to be handled only upon complaint. Through the legislation research method, this paper is mainly to introduce China's related legal provisions since the Tang Dynasty and the relevant regulations in criminal codes of Germany and Italy just as an example of the continental law system countries. Based on the regulations, legislative reasons are listed and summarized. While in Chinese related legal provisions analysis, this part used the methods of historical research method to combine with the social background and summarized the system characteristics of the Chinese traditional crimes to be handled only upon complaint. At the same time, comparative method were used to show the scope change of the crimes to be handled only upon complaint because of the time, culture difference and the renewal of legal concepts. Finally, combined with the judicial practice of criminal reconciliation and the dilemma that faced, the paper used the perspective of empirical analysis to confirm the reasonable scope and the possibility and necessity between the criminal reconciliation and the crimes to be handled only upon complaint in current Chinese judicial. This paper attempted to summarize the existing research results, and to seek the change trend of the crimes to be handled only upon complaint.The thesis consists of seven parts. The instruction introduced the research significance and the domestic research status of the crimes to be handled only upon complaint, and then elaborated the objects the research methods and the line of argument in this paper. Compared with the crimes handled without complaint, the crimes to be handled only upon complaint pay more attention on the conflicts between individual rights and the public interests, the relations of the victim's intention and the maintenance of social order, the balance of the tough on crime and the modest restraining, and the cohesion the substantive law and the procedural law. The system content of the crimes to be handled only upon complaint is extensive, including both the nature of such crimes, crimes range, relevant system and judicial practice etc. Above all, the scope is the core of the system. In China, puzzled phenomenon in judicial practices of the crimes to be handled only upon complaint had close contact with the narrow legislation of criminal code and the rough criminal procedure law. Therefore, the exploration of the reasonable scope of the crimes to be handled only upon complaint has the theory value and the practice value.The first chapter is the summary. Firstly, through listing and interpreting the wording and meaning in the criminal law of various countries and regions, this part given the definition of the crimes to be handled only upon complaint. It means:the crimes will be punished only by the victim appeal the judiciary to investigate, prosecute or trial. After that, these crimes'nature was discussed. The condition-" complain"-exists or not, is the core difference between the crimes to be handled only upon complaint and others crimes. So, the character of the "complaint" was the key to discuss the nature of these crimes. In foreign criminal law, "complaint" regarded as procedural conditions, hindered the process of criminal procedure. In China, there are more than ten kind's opinions. After introducing various ideas, this paper pointed out that the "complaint" had procedural and substantive dual attribute. In the criminal procedure, the "complaint" existed or not was the factor to affect the process. Their substantive characteristic was a cause of preventing penalty, and can be incorporated into the" illegal and responsibilities outside the additional elements". By the dual nature of the crimes to be handled only upon complaint, the scope research should be discussed from the substantive and procedure aspects.The second chapter listed and compared the Chinese ancient and modern transformation of the crimes to be handled only upon complaint. Then, the paper analyzed the scarce reasons of these crimes, interpreted the rationality and deficiency of the ancient crimes, and explained the rapid change phenomenon. The ancient "complain" system is a private relief way, is also the important tool for nation to control social and surveillance persons. The crimes to be handled only upon complaint were exceptions in the Concealment system between relatives, which embodies the conflict between the Chinese ancient imperial authority and patriarchy. Therefore, the scope of these crimes were inevitable very narrow. And at the end of the Qing Dynasty, the criminal law was especially influenced by the social turbulence and the Eastward Transmission of Western learning. Through critical review of the traditional ethics, the late Qing Dynasty's criminal law opted to follow and copying western continental law legal system mode, so that the legislative technology, legal system, content of the legislation and so on changed dramatically. At the same time, the crimes to be handled only upon complaint were completely different.The third chapter described the legislation changes of the crimes to be handled only upon complaint after 1949.Abased on it; this paper supported the view of expanding application scope of the crimes to be handled only upon complaint. The third chapter involved two contents:1. sorting out the legislative changes and the reasons of the crimes to be handled only upon complaint in current criminal law of China. There were two kinds of extreme views needed to consider:one was to advocate strict restrictions or even cancel these crimes, which was based on the point of view that the nation power can be equal to anything; the other one was expansion the scope to more serious crimes, which based on the distinguish concept of the contradictions among the people and the contradictions between ourselves and the enemy. These two kinds of viewpoints indicated the inadequate knowledge about the value of the crimes to be handled only upon complaint, because ignored the complexity of human society, the legal limitation, shifting between the state power and personal rights. It also caused our current scope of the crimes to be handled only upon complaint is too narrow, and present certain arbitrariness.2. through citing the changing range and legislative reasons of the crimes to be handled only upon complaint in Taiwan present criminal law, to affirm the achievements. By the scope of the crimes to be handled only upon complaint changes in Taiwan province, this paper put forward that the scope of these crimes in Taiwan area better than those of domestic. In two aspects:on one hand, social tradition, social order and social effect was the main factors of these crimes to be established; on the other hand, the legislators insisted on the protection of personal freedom and independence status position. The fourth chapter taking the Germany and Italy for example, argued the characteristics of the crimes to be handled only upon complaint, and discussed the standard of the scope in crimes. At the same time, the criminal codes in Germany and Italy defined the related contents of the crimes to be handled only upon complaint. General provisions ruled the system of "complaint", and specific provisions ruled the crimes. The scopes of the crimes in two countries were more extensive, but the manner and content varied because of the legislative ideas and techniques different. In the two countries criminal codes, the "complaint" of the crimes restrict the state power of punishment, but not absolutely preclude the intervention of the state power. By comparison with international scope of the crimes to be handled only upon complaint, domestic legislation is too narrow. Therefore, we should expand the scope of the crimes to be handled only upon complaint, by establishing the reasonable standard.The fifth chapter analyzed the structure and properties of the crimes to be handled only upon complaint. Firstly, this part elaborated the legitimacy to regulate the crimes to be handled only upon complaint. Through listing the structure and properties of these crimes in China from late Qing Dynasty to now, Taiwan province, Germany, and Italy, the paper pointed out that in avoiding the secondary victimization, the crimes to be handled only upon complaint aimed to protect the individual legal interests. Then it discussed three aspects of the influence on the scope of these crimes: relatives or other special relationships, defamation or invasion of privacy, and harm degree. Minor harm as the standard determined the reasonable and applicable scope of the crimes to be handled only upon complaint, did not accord with the current political environment, economic status, social concept and level of science and technology in China. Reconstruction of our country's scope of the crimes to be handled only upon complaint was imperative.The sixth chapter discussed the possibility and the feasibility to combine the criminal reconciliation and the crimes to be handled only upon complaint. In judicial practice, criminal reconciliation's the legitimate foundation was questioned, and its range was difficult to determine. The paper proposed a standard to distinct criminal reconciliation and criminal mediation, that was the consultative contents involved punishment or not. At the same time, the criminal reconciliation cases range is limited to the crimes to be handled only upon complaint, while the criminal mediation applicable to the crimes without complaint. Then, the author redefined the scope of the crimes to be handled only upon complaint and perfection of criminal reconciliation system. Through argumentation, the author suggests to enlarge the scope of the crimes to be handled only upon complaint in China. In addition, through the analysis of criminal reconciliation and criminal mediation of two different restorative justice program, this paper combined such crimes with the criminal reconciliation, and put forward:to get rid of the criticize of "reducing the punishment with money", the legitimacy of the criminal reconciliation should be confined to the crimes to be handled only upon complaint.