| The criminal ruling power directly concerns legality and appropriateness of other state powers in criminal action, vests or divests rights of procedural participants, settles social conflicts and makes social harmony to be recovered. However, the academic circle hasn't pay enough attention to it. The article makes research on it in ways history inspection, comparative study, theory relating with practice, game theory and comprehensive study of poly-subject. Its purposes lie in richening and developing criminal procedural theories, improving criminal procedure law of our country and resolving a series of problems in judicial practice. The article is divided into six chapters as follows:Chapter 1. Introduction of the criminal ruling power. Criminal ruling power is a historical conception, evolving from the primitive ruling power, and its natures are state power and legal power. Modern criminal ruling power has features of judgment, conclusion, independence and passivity, which has the key status in power system in criminal action,Chapter 2. Subject and object of the criminal ruling power. Historical evolution of subject of criminal ruling power manifested development trend of ruling organs to uniform and specialization and that of ruling organizations to diversity and democratization. Inspecting establishment of courts and its influence factors in the main contemporary countries and analyzing establishment of courts today in our country, the author finds there are three problems mainly existing and puts forwards resolving countermeasures: The first is the problem of court localization, the author thinks we should take the personnel and financial power back to the courtsystem and realize establishment of local courts according to judicial districts in the end. The second is the problem of ruling power of judicial committee, the author thinks we should call off its power of ruling concrete cases and set up joint trial system of judges. The third is the problem in application of assessment system, the author thinks we should make the assessors touch cases earlier and introduce jury system to a certain extent. The author raises the problem of the object of the criminal ruling power based on the legal relations of the public law newly set up. The author advises to use foreign experience for reference to enlarge domain of the object of the power of our country based on our own conditions, and to cancel decision power of parole of courts. The essence of the object of the criminal ruling power directs to the problem of interests.Chapter 3. Functions and limits of the criminal ruling power. The criminal ruling power should have the functions of settling criminal cases;controlling other state powers, protecting lawful rights of participants;realizing law contents, showing law authority;making law rules, remedying defects of legislation. The functions of the criminal ruling power of our country are not enough and we should use foreign experience for reference to build case-law system and criminal judicial order procedure. The limits of the criminal ruling power of our country embody that the courts can't rule the cases which the investigative organs doesn't solve and the criminal public interests cases the public procurator is idle to prosecute and in which there is no direct victim. The ways of proper conqueror of the limits of the criminal ruling power of our country are raising the rates of resolving cases of investigative organs and building the system of criminal public interests litigation.Chapter 4. Moving principles and procedures of the criminal ruling power. The movement of the criminal ruling power should followprinciples of ruling according to laws and reasonable discretion, ruling according to evidence and beneficial to the defendants in dubious situation, uniform of the prosecution and the defendant, and ruling promptly in the court mainly. The procedures of movement of the criminal ruling power include adjudication procedure, ruling procedure and decision procedure. We should establish an independent sentence procedure, a criminal ruling procedure including contents of openness, form procedure, appraisement and vote, and remedy, what's more, the criminal decision power of the courts in our country should be improved in the aspects of openness, form procedure and remedy.Chapter 5. Control of the criminal ruling power. It is necessary to control the criminal ruling power. The control standards are only controlling phenomena of wrong employment of ruling power and not violating independence and discretion of the criminal ruling power. The control demands are being stipulated in statute, forming a system and comprehensive. The control ways are state power control, rights control of the parties and so on. The author thinks there are four remarkable problems in control of the criminal ruling power of our country and raise countermeasures: The first is the problem that the courts change charges, the author thinks the courts have the power to change charges in a appraisement procedure before sentence newly constructed based on facts recorded in indictment. The second is the problem of complaints of effective adjudication, we should establish the complaints system including contents of subjects, objects, reasons and resolving procedure. The third is the problem of concrete cases supervision of the People's Congress, we should establish the system of cases supervision of the People's Congress on premise of the principles of complementary supervision, collective supervision and procedural supervision, and make it standardization insupervision subjects, cases domain, opportunity, procedure and resolution of later things. The forth is the expression of reasons of criminal verdict, we should continue to show individuality based on the formalization in reasons of verdicts, emphasize statement of sentence opinions, mark names of the makers of verdicts and establish rewarding system of excellent verdicts.Chapter 6. Modern development of value theory of the criminal ruling power— ruling consensus. The author thinks the continuing research of traditional theory on relative realization of the values isn't enough and its research field is limited, and then put forwards the theory of criminal ruling consensus. Its philosophic base is inter-subjectivity philosophy and its methodology base is game theory. The consensus theory can be unified with traditional value objectives but conflicts still exist and its resolution shouldn't violate basic view of value and law principles of our country. Realization of the theory of criminal ruling consensus should have some conditions, that is, discovery of facts of cases, compromise of interests and approval by law. The typical realization procedures of criminal ruling consensus abroad include: plea-bargaining, criminal mediation and restorative justice. The author advises to establish a compound procedure of the three-criminal bargaining ruling procedure as realization procedure of criminal ruling consensus in our country absorbing reasonable contents of plea-bargaining and restorative justice, based on the present mediation procedure and on promotion of criminal mediation notion. |
