Study On Failure Of Criminal Procedure System

The life of right lies in relief,and the life of system lies in implementation.Chinese Criminal Procedure Law has been revised for several times and has become more and more consummated.However,legislators carefully designed criminal procedure system is often suspended,put off,violated and substituted in judicial practice.There is a significant gap during the transition from "a system on paper" to“a running system".In recent years,the failure of criminal procedure system has received increasing concerns from the circles of theory and practice.However,the study on this issue is insufficient and certain systems are not available in China.This paper aims at a relatively systematical study on the failure of criminal system,tries to categorize the phenomena of the failure of criminal procedure system based on the definition and analysis of this concept,and analyze the causes and negative effects of it according to four dimensions,i.e.,people in system,system defects,cultural environment and system field.Firstly,the connotations and factors of the criminal procedure system are analyzed according to the basic theory of the system.The connotation of the"criminal procedure system" discussed in this paper means the specialized system designed by code of criminal procedure,the function of the system is to adjust the behaviors of the subjects of criminal litigation.It can clearly be seen that we use the concept of "system" refers to the specific system.Secondly,based on the explanation of the basic meaning of "system failure",the connotation of the"criminal procedure system" discussed herein is defined.It refers to a phenomenon of system failure that a specific criminal procedure system is suspended,avoided,substituted or violated in practice or that the criminal procedure system designed by legislators is deviated from the preset goals in implementation.Next,based on the analysis of the concepts such as the "failure of criminal procedure system”,"latent rules of justice”,“procedure differentiation”,“failure of criminal procedure and"failure of criminal procedure law",the intents and essential characteristics of the concept failure of criminal procedure system" used in this paper is revealed.Thirdly,the failure of criminal procedure system has four basic characteristics,i.e.,universality of occurrence,concealment of action,consciousness of subject,and variation of content.Second,the phenomena of the failure of criminal procedure system is categorized based on the legal system arrangement of criminal procedure j laws,with the real operation status of a specifie criminal procedure system in judicial practice as the carrier and adopting the approach of normative analysis and empirical analysis;and the failure of criminal procedure system has the following main types:system suspension,system addition,system substitution,system violation,system speculation,system goal deviation and system transformation.Secondly,assumption about human nature is the logical starting point for designing legal system,and it is also an important reference for evaluating the effect of legal system.Different from civil law and criminal law,a differentiated humanity hypothesis by legislators applied to judicial officials,litigants and other litigation participants during the design process of criminal procedure system is studied.The hypothesis is that the judicial officials are deemed as selfless Moral Man",the litigants as a selfish "Economic Man and other litigation participants as responsible"Social Man".The dislocation of humanity hypothesis of judicial officials by the procedure system is focused on,that is,the concealment of the "Economic Man"nature of judicial officials by the appearance of the "Moral Man" is the deep-rooted cause of the failure of criminal procedure system.The judicial performance evaluation mechanism implemented in judicial practice is further expansion of the conflict.Second,with typical cases as earriers,the close relations between the "Economic Man" nature of judicial officials and the failure of criminal procedure system is studied,and the natural inert,hitchhiking tendency,opportunistic behavior,cost externalization choice and other moral risks of judicial officials as "Economic Man",which may easily result in the failure of criminal procedure system,are pointed out.Last,with witness system as the case in point,the system arrangement of neglecting the a Economic Man nature of other litigation participants,which may also result in the failure of criminal procedure system,is further analyzed.Thirdly,system defect refers to the major deficiencies restricting the realization of system goals at the beginning of the birth of the system,the system defect is mainly divided into three types,i.e.,system ineffectiveness(in system value),system incompleteness(in system structure)and system non-self-consistence(in system content).Legal system is the most common system form in modern life.As to criminal procedure system,system ineffectiveness causing the failure has three major reflections:the system cost is higher than the system benefit,the system design ignores the effeectiveness principle,and the resource allocation is ineffective.Second,the system incompleteness is mainly reflected by the unavailability of sanction mechanisms,relief mechanisms and supporting mechanisms.The structurally incomplete criminal procedure system may easily fail.Third,the system non-self-consistence,often reflected by the conflicts between formal systems and between formal system and latent rules of justice,directly reduces the accountability and responsiveness,thus weakening the execution force in different ways and easily causing the failure of criminal procedure system.The fourth,the organization field of criminal procedure system refers to the collection of relevant organizations responsible for the operation of criminal system.This is an objective and dynamic relation system.The organization field of criminal procedure system has a hierarchy,including horizontal relations,vertical relationship and internal relations of organizations.There is a mutual shaping relation between system operation and organization field,and the status of system operation affects the form of organization field,which in turn constrains the effect of system operation.The basic characteristics of organization field of Chinese criminal procedure system are the judicial administerization,which is reflected in the following aspects:administerization of organization member properties,administerization of organization member goals and administerization of organization vertical relation.From the perspectives of internal relation,horizontal relation and vertical relation of organization field of criminal procedure system,the basic characteristics lay hidden risks to procedure system.The fifih,the failure of procedure system caused by cultural psychology constraints is expounded from both macro and micro perspectives.When the modem procedure concept advocated by procedure system has the same direction and forms resultant force,peopled obedience by the procedure system will be enhanced.However,when the relation between the two cultures is intense and has a see-saw effect,the voluntary obedience will decrease,while the inherent resistance will increase,which may result in the failure of legal system.Second,the relation between the deficiency of procedure culture and the failure of procedure system is focused on.The study holds that the deficiency of Chinese proeedure culture results in the inherent abandon of recognition and respect of procedure system,thus causing the failure of system that the law executors lead the resistance of formal system.Last,as the central government highly praises and advocates“innovation,,the innovation atmosphere is mushrooming in all walks of life in China,including the judicial sector.Based on the study of antinomy relation between law and innovation,the system transformation failure caused by innovation culture is pointed out.Last but least,the existing research fruits of the failure of criminal procedure system are summarized,finding that there are three typical negative effects,i.e.,degrading legal authority,violating procedure justice and impairing judicial credibility.Second,with the failure of common procedure system and chief procurator approval system as the earrier,the relation between system failure and system defects is analyzed,and that the system transformation failure has the positive effect of overcoming system defects and increasing system efficiency is pointed out.Again,according to the system change theory of system economics,and based on the change history of Chinese non-prosecution system,the dialectical relationship between system change and system failure,that is,system failure is the prelude of system change while system change is the way to prevent system failure,is analyzed,thus recognizing that the failure of criminal procedure system also has some positive effects.Finally,analyze the relationship between the positive and negative effects of the failure of criminal procedure system,point out the positive effects is acting on specific system,so it is limited.The game of positive effects and negative effects essentially is the game of two kinds of law reform path.This is no doubt that the failure of criminal procedure system is an obstruction of the rule of law,particularly,constrained by different conditions such as severe shortage of system resources,the judicial officials as system executors have to seek necessary compromise between system and practice.