Criminal Mode Of Evolution

This thesis is divided into three parts: introduction, part one and part two. Part one explores the formation, the development and the reformation of the typical models of criminal procedure in the typical countries in history; part two examines the formation and the reformations of the model of the criminal procedure in China, and explains the necessity of the reformation of the existing one, the prerequisites and the tendency of it. This thesis lays the emphasis on the elements which confined the development of the model of the criminal procedure, such as the historical circumstances, the structure of the power, the economical system, the ideological trend,the cultural tradition, the legal transplantation and so on.The introduction presents the purport of this thesis and the basic clue of it, and explains the conceptions of the relevant terms.Chapter one analyses the circumstances and the reasons leading to the formation of adversary system in the ancient Rome, ancient Germanic and the England before the Norman Conquest. The adversary system reflected the democracy of primitive society. It resulted from the immaturity of the power and was closely related with the conception of tort and that of crime of that time. When the primitive democracy was destroyed, the power maturated and the conception of crime was separated from that of tort, the adversary system necessarily died out. Chapter two and chapter three explore the formation, the prevalence, the declining of the ancient inquisitorial system and the establishment of the modern one in the continental Europe. The ancient inquisitorial system was not a born nuisance. However, it not only met the needs of the rising power of the king, but also found favor in the eyes of the people yearning for stability and unity. But when things changed, the ancient inquisitorial system was doomed to disappearance by the drawbacks of itself. Because there were lots of democratic elements in the political system and the legal system of England, the continental Europe once followed its example and adopted the adversary system. But the consistency of the system and the national characteristics decided that the inquisitorial system was necessarily their final choice.Chapter four deals with the transition from the ancient adversary system to the modern one in England. It mainly analyses the effects on the procedure of the rising power in the proceedings and the battle between the nobles and the king. The ancient inquisitorial system didn't prevail in England. It only lasted briefly in the time of Tudors. England and France were both ruled by king in Middle Ages, but the fate of the ancient adversary system in them were different: while it was replaced by the ancient inquisitorial system in France, it evolvedinto modern adversary system in England. The critical reason for this was that the balance of the force of the king and the nobles was different in the two countries. And the forms and the objects of the battle between the two were different as well.Chapter five examines the formation and the development of the modern adversary system in the United States. Before independent from the Great Britain, the American colonies adopted the English legal system. But after it was freed, the mood of anti-England rose highly. The argument of transplantation of the French legal system was supported universally. However, the common law was carried out in the colony in the time of colonization. The historical consistency didn't allow for this transplantation. On the other hand, the spirits of the common law accorded with the requirements of the war of independence. The democratic elements in the English criminal procedural law were once used as powerful arms against the colonialists, such as the jury system. And the more important reason was that the connotation of the modern adversary system conformed to the aspiration of the colonials. In the meanwhile, the modern adversary system, the conception of the natural rights and the pluralistic culture brought out the best i...