Humanistic Analysis Of Criminal Procedure

Criminal Procedure is used to standardize human activities, and it aims to provide all criminal litigation participants an action frame. Reasonable Criminal Procedures should be established on a reasonable and humanistic hypothesis. Human is an entity of natural attribute and social attribute. Humans’activities are based on their various needs. To satisfy their needs, humans have to cognize their external environments and themselves, and this kind of cognition is impossible to be completely rational because humans are limited rational; Humans also have to interactive with others, and this kind of interpersonal communication usually desired to fulfill people’s own needs because humans are egoistic. However, this egoism may be either harmful or beneficial to others besides its satisfying one’s self. Humanity is the balanced entity of people’s natural attribute (demand of satisfactions), limited rationality and egoism. The designation of Criminal Procedure should balance, recognize and guarantee the reasonable requirements of all kinds of criminal litigation participants, and depress their unreasonable requirements; it should also spotlight the limitations and prevent the egoism. The purpose of this dissertation is to state the above points through the Humanistic Analysis of Criminal ProceduresThere are eight parts in this dissertation.The first part is the prologue: the necessity of the humanistic analysis of Criminal Procedures. In the process of modernization Criminal Procedures of non-western countries, there exists a“marginalization”, which is that criminal litigation modernization tends to become westernization, and it causes the criminal litigation legislation to divorce from the country’s realities, then forms both visible and invisible procedure. Furthermore, since Criminal Procedures strain people’s actions, it should show a kind of humanity, but the Criminal Procedures have double-edged lacks: either legislatures or judicatures lacks of humanity care. How to avoid“marginalization”? How to show humanity care? These problems should be analyzed and studied from humanistic perspectives.The second part demonstrates the construction of humanistic view of criminal procedures. In China, limited by local social survival conditions, Chinese ancient thinkers mainly paid attentions to interpersonal harmonies, and they claimed humanity theory as a dual problem of goodness or badness. While in western countries, since people there pay more attentions to require from the outside, they have assorted humanistic theories, and the point of the goodness and badness is only a part of those theories. Natural attribute is the animal attributes of human beings and it a premise of being a human. Therefore, humanity is an entity of people’s natural attribute, limited rationality and egoism. All kinds of criminal litigation participants, the litigants in other word, are also an entity of natural attribute, limited rationality and egoism. Nevertheless, various sorts of litigants have diverse benefit needs and capabilities of fulfilling the benefit needs. Not only should be considered the egoism of litigants, but also should be worried about the different benefit needs and the capabilities of accomplishing them when setting up Criminal Procedures. To conclude, the humanistic view of Criminal Procedures also includes three parts: the natural attribute of litigants, namely their benefit needs, limited rationality and egoism.The third part of the dissertation is a humanistic analysis of the due process of law. Due process of law has a development from form justify to substance justify. Form justify means the compliance of law procedure, and one of its purposes is regulate and direct the litigants’egoism, for another purpose, it compensate the limited rationality of the litigants. Substance justify means that the law procedure owns justify by itself, and its purpose is balancing the benefit needs of litigants. One of the reasons why there exists numerous“latent rules”in our country’s actual judicial practices is the law-enforcers’egoism based on their own benefit needs. Balancing, recognizing, and guaranteeing reasonable benefit needs and depressing and preventing unreasonable benefit needs are the key to normalize our country’s Criminal Procedures.The fourth part states the humanistic analysis of the Criminal Procedure structures. The Criminal Procedure structures can be categorized to be horizontal and vertical structures. In the horizontal structure, the reorganization and guarantee of the victim’s reasonable needs would lead to a raise of the status of the victims in a criminal litigation, and then this would challenge the traditional criminal litigation structure; To ensure the criminal suspects’reasonable needs, the rights of criminal suspects in the criminal investigation should be enlarged, and the regulating and monitoring of the compulsory measures should also be enhanced; to avoid the humanistic defaults of inspectors, the current examination before prosecution procedure should be adjusted to a hearing procedure with three-part structure; The humanistic flaw of judges and the guarantee of the implicated persons’reasonable needs requires the enhancement of the defendants’pleading abilities, and it also requires the judge to take a duty of lawsuit concerns. In the vertical structure, to compensate the shortage of investigators’rational abilities, the procuratorial organ should strengthen its direction function to investigation organ, and a regime of inspectors’directing on investigators should be established; Due to the humanistic flaws of the judges and the guarantee of the defendants’reasonable needs, the right of changing accusation, investigating and collecting evidences of the court should be limited, and the right of starting retrials of the court should be removed; Because of the egoism of the judges and the sentenced persons’reasonable needs, the right of execution of punishment against property of the court should be withdrawn.The fifth part of the dissertation is a humanistic analysis of pretrial procedure. The national lawsuit principle of criminal litigation depends on the humanistic consideration of victims on one hand and the humanistic consideration of law-enforcers on the other hand. The compulsive measures are basically an invasion on rights, its validity lies in the possibility of obligation violation by criminal suspects and defendants, but the executive scope of these compulsive measures should be regulated and restricted for the humanistic drawbacks of law-enforcers. The reason that our country’s residence surveillance measures are malfunctioned come from the law-enforcers’benefit drive. The unreasonable need of law-enforcers causes the dissimilation the function of our country’s arrest measures. Although the procuratorial organ’s prosecution action should be objectified from legislation and theory perspective, there are tremendous differences between legislation and practices in objective persecution because of the inspectors’egoism. In order to make the procuratorial organs’persecution as objective as possible, the inspectors’egoism must be confronted, and restrictions should be taken into action. The criminal non-persecution is related to the persecutors’limited rationality and their benefit needs, so that criminal non-persecution should be reasonably restricted aim to inspectors’egoism. Owing to the limited rationality of victims, the crime to be handled upon complaint is not equal to the crime of private prosecution, our country should consider on the victims’incapability of persecution, and accomplish the persecution regime of crimes to be handled upon complaint。The sixth part of the dissertation is the humanistic analysis of trial procedures. The setting of trial procedures is directly affected by the benefit needs and limited rationality of all sorts of lawsuiters. To ensure the reasonable needs of defendants are satisfied, compensate the limited rationality of judges, and increase the lawsuit efficiency, our country’s pre-trial procedures should be completed. The existence of the judicial committee is sound due to the judge’s humanistic drawbacks, while the procedure of the judicial committee’s involvement in the cases should be perfected based on the judges’humanistic drawbacks. The judges are privileged discretion because of the legislators’limited rationality, while the judges’discretion is sometimes abused because of the judges’humanistic drawbacks. Our country should perfect our sentence procedures aim at the judges’humanistic drawbacks.The seventh part of the dissertation is the humanistic analysis of the penalty enforcement procedures. The disadvantage social situation of the criminals requires the penalty enforcement procedure to be humanistic. The respect to criminals and their relevant lead to a transformation of penalty enforcement from publish to private, and from cruelty to civilization. Community based correction reflects a humanistic respect, while community based correction procedures lack humanistic foundation, and our country should humanize the community based correction procedures. The key point of the utilization of condemned prisoners’organs problem in our country is the improper procedures, because the reasonable needs of condemned prisoners and their relevant are not respected, and the humanistic drawbacks of law-enforcers are not enough considered. The procedure of utilization of condemned prisoners’organs should be humanistic.The eighth part of this dissertation is the concluding remarks. The key points of the humanization of Criminal Procedures is the recognition and guarantee the reasonable needs of all sorts of litigants, especially those criminal suspects, defendants and victims who sufficiently lack of benefit needs achievement abilities. There is a benefit distribution process in determining how to legislate these reasonable needs. There is a long way to go with the methods in recognizing and guaranteeing the criminal suspects and defendants’reasonable needs due to their special status.