Man Spirit And Criminal Procedures

This thesis composes of five chapters and mainly concerns with the relationsbetween criminal procedure and Humanism. Beginning with meanings of Humanism and ending with criminal procedure influenced by Humanism in history, in the First Chapter, the author focuses on traditional criminal procedures in China and the West which are influenced respectively by the Humanisms of Confucians and the enlightenment. Humanism in law, being the certification and guarantee for freedom, equality andhuman rights, makes individuals should and be qualified for the responsibility to theirown thoughts and behaviors, while Humanism in philosophy is the basis of theHumanism in law. Building a harmonious society is the strategic paths to bring about thehuman-oriented outlook, which is the theme of reform and development in China atpresent. Human rights discussed in this essay, not a notion with controversy values,can be mainly come from Humanism which can completely reflect the track of humanbeings pursuing laws of development on criminal procedure. It is the Confucian school, cultivated by Confucius in Qin dynasty, that has beingcomprehended and given expression to meanings and values of Humanism in Chinesetraditional culture which gives birth to the law thinking in China with long history.Humanism in Confucian school, the core of Chinese traditional culture with valuablemeanings not to be neglected, has following characteristics which are reality, duality,transmutation and religious nature. Meanwhile, Humanism in Confucian school hasan effect on ancient civil judicial tradition, that is to say, objection to savage torture,carefulness to punishment, pity to punishment. The author takes several countries, such as French, German, Italy, British andAmerica as investigation objects since Humanism reflected on criminal procedure inthe West has been mainly embodied at the Age of Enlightenment. The basic relations between Humanism and ideals of criminal justiceare displayed in both Second Chapter and Third Chapter. Criminal procedure has always been the core of the due legal procedure. Dueprocedural movement, having been experienced by Western countries has being basedon rational of legal values in form and represented by outlook of the law in content.As we know, the essential factors of the rational of legal values are requirements ofthe freedom, equality and rights which can be thought as confirmation andmanifestation of values and dignity of human beings. To understand legitimacy of criminal procedure of our Chinese, we should get toknow sense of justice of our Chinese, on the one hand, the idea of justice in China hasbeing based on ethics which refers that justice comes from affection, that is to say,anything that conforms to affection is the notion of justice, otherwise it is injustice; onthe other hand, legal system and hereditary autocratic monarchy rooted in criminalsubstantive law, has being rejected and excluded development of law formalism andprocedural rational. Self-value, advocated from Humanism, has being presented procedural legitimacy inthe period of the origin and development of criminal procedure, in which theestablishment and changeability of its standard also reflected and acted in cooperationwith certainty and dynamics. In the second chapter, legitimacy is logically regarded as an ideal arisen fromHumanism. In the meanwhile, the paths and foundations of Chinese criminal procedurereform are suggested with example of Plea Barging. Since our human beings have learned to deal with disputes in the way of criminalprocess, the problems on legitimacy of process and ways in criminal cases have beenhighly paid attention to. After the first judgment of Plea Bargaining, the argument on whether we should drawon or absorb the experiences of Plea Bargaining and how is intense, in which focus of theargument is the influence on legitimacy of criminal process taken by Plea Bargaining. The "Quit-Litigation", which differentiated from Plea Bargaining in USA, has beeninterlinked with each other. Therefore, the principle...