Research On Criminal Due Process

The thesis is intended to provide systemic research on Due process in criminal procedure. In content, it includes three parts - history, theory and application in China. It begins with history with the aim to provide as objective as possible understanding of Due process for readers. In the course of the forming of Due process, there is spontaneous historical evolution as well as conscious theoretical deduction; there are localistic elements as well as generally applicable elements. One of our important tasks is to look for the general rules along the historical course of due process in Britain and America and get rid of those confined by particular historical conditions. The history describing is not the end in itself, but to provide the materials of thoughts. In the research on Due process, theoretical analysis is especially indispensable, because the notion of Due process comes up with us from other places and not a native one for Chinese writer and readers, which embodies not as much our inherent ideas as borrowed ideas. So, necessary theoretical analysis can compensate our inherent defects in some degree. But in the end, the research will still go back to the solution of Chinese particular problems. This is the macro structural relationship of the thesis.The part "history" includes 3 chapters:Chapter 1: Origin of Due Process - Due Process in English Law.Before the common law came into being, there existed some notion of individualism and limited sovereignty in English society. In the course of common law's forming, procedures have played an important role. All these provided conditions for the birth of Due process idea. The provision of "the law of the land" in the Magna Carta gave birth to the notion of Due process ultimately. But as far as the procedural implication is concerned, Due process in England at that time refers only to the procedures in common law court. This means due process in England is localisticly featured.Chapter 2: The Evolution of Due Process - Due Process in American LawCompared with that in England, due process in American law is open-minded styled. The general provision in the U.S. constitution leaves much room for judicial interpretation, so the Supreme Court was able to develop a set of detailed procedural safeguards from it and at the same time a peculiar methodology of due process came into being. This chapter gives a detailed account of the development and evolution of the scope and content of due process.Chapter 3: The Developing Tendency of Due ProcessThis chapter examines the developing tendency in America, Britain, European continent and international society. In 1970's, due process tide in America and Britain began to decline, but many countries in European continent have set about procedural reform toward due process. After World War, due process began to enter internationalsociety. But the due process in international society is different from that in England and America in that the former is some kind of general procedural requirements adapted to different procedural mode generally. It is highly compatible and generally applicable. Now, due process is developing toward internationalization, constitutionalization and substantization.The part "theory" includes 2 chapters.Chapter 4: The Logic Structure of Due ProcessIn order that readers in a heteroplastic cultural context understand due process exactly, this chapter firstly researches the four theoretical strongpoints of due process, ie. Individualism, rationalism, principle of democracy and rule of law. Without these theoretical strongpoints, one cannot reach the nature of due process. After that, the thesis gives an account of the traditional principles of due process Michael D. Bayles generalized in the context of Anglo-American law. Then the thesis relates the general requirements with reference to the human rights documents of U.N..Chapter 5: The Value Analysis of Due ProcessFirstly, the paper gives an account of research on values of due process in terms of theory of natural...