The Research On Latent Judicial Rules In Criminal Field

’Latent Judicial Rules’was a term proposed by Deng Jiangyin for the first time, in 2006. The concept proposed has triggered much concern in the law sector and been appreciated by quite a few experts and scholars of its kind. The ration itself doesn’t support negative or critical factor more than describes a judicial phenomenon from an objective prospective, given that, ’latent Judicial Rules’should be described as neutral, the concept is different form what people think about the Latent Judicial Rules is observed from the legal perspective of procedural justice, while the latter focuses on the evaluation on the phenomenon of a kind of social life.Berman had said that:’there is no public is meaningless justice’, then Wang Liming also said that:’the pursuit of justice of law and order must be open and transparent’, the Latent Judicial Rules, In some extent, is openness and the procedural, so it does not conform to this idea. However, it has a deep root of historical culture and system, and it also has a certain of rationality and practical utility. How to solve this contradiction, which has became a problem of legal science.Because of the deep reformation of judicature and comprehensive advance of the rule of law. The contradiction is becoming more and more highlighted, and the research on the latent judicial rules appears particularly important. From the beginning of the 21st century, experts and scholars begin to research this two issues, the first one is that how to eliminate its negative effects on the rule of law; the anther is that how to make full use of the reasonable composition, and turn it into a kind of formal rules,which conform to procedural justice. But because of a certain degree of limitation in this field, the current study is still in its infancy.With the deepening reform of judicial, this paper launches the research on this issue. In this paper, we adopt the method of literature research, and use the existing research achievements, the research of law, history, sociology and survey data as the main material, to comb and interpret these materials. The paper will introduce new research perspectives on some content, In order to get a comprehensive analysis of judicial rules to judicial phenomenon, and provide theoretical support for deepening the reform of the judicial. The following is the structure and the main content of the articleThe first part is the overviews of the paper, which divided into four sections. The first section expounds the research results of the relevant concepts of the latent judicial rules in the domestic and the outside. The second section briefly describes the author’s understanding of connotation of the latent judicial rules. The third section analysis the characteristics of latent judicial rules, including the hidden, unilateral participation and non-legal rationality. The fourth section analyzes the negative impact of judicial rules and practical utility dialectically.The second part will expound the major forms of judicial rules, mainly reflected in the criminal pretrial procedure and the trial procedure. Its specific manifestation in the pretrial procedure including four aspects:early detection, illegal collection of evidence and action delay and investigative centralization. Its specific manifestation in the trial stage including five aspects:witness not testifying in court; jurors functioned as inadequate; suspected crime case back; system of asking for instructions knowledge and localization of jurisdiction.The third part analysis the causes of judicial rules, there are two sections in this part. The first section analyses the reasons of the outside system, including legal culture of Confucian ethics; differential mode of association; static-security prior protectionism and the judicial efficiency concept. The second section analyses the reasons of the system, including the lack of supervision mechanism and punishment mechanism during criminal pretrial procedure; the obstacles of judicial independence and the defects of existing laws.The fourth part discusses the correct path of judicial rules, there are six sections in the part. The first section analyzes the traditional concept of law and the necessity and the possibility of changing the law idea. In second section, we will explore the path of transformation of the trial mode and the model of criminal investigation from the following several aspects:neutrality of the judge; the judge in moderation; the settings of investigation of the program should be humane; the equality of the prosecuting and defending parties, and the full participation of the prosecuting and defending parties. In the third section, we will discusses the path of reform of AR mode, and the reform and perfect the measures of pre-trial supervision mechanism. The fourth section discusses the perfection of human rights protection legislation and the improvement of legislative technology. In the fifth section, we will discuss the path of the reform of judicial system. Including the judge system; the system of circuit court; the system of witnesses to testify in court; adjudicatory committee and the system of people’s assessors. Section 6 dialectically analyzed the reasonable component of judicial rules, and analyzes the possibility of transformation of its reasonable composition.Because of the limited level, the above-mentioned discussions may be superficial, however, the existence of judicial rules against the requirements of the program of the rule of law and rational, and has a certain negative impact on the rule of law, the thesis wills cause the attention of legal science and practice, to prepare for the judicial reform and promoting the rule of law.