A Study Of Reform Of Chinese Criminal Judiciary Under The Contract Spirit

Criminal procedure law, along with its supporting system, has developed and completed, both practically and theoretically, within 40 years’ time since the first publication of the Criminal Procedure Law in 1979 and its transition of two times of revision. Litigation pattern has transformed from absolute power into relative power.In the form of the development of the litigation, we have witnessed the transition from pure ex officio doctrine toward adversary trail form absorbed selectively from the common law system. Due process in the criminal procedure has developed and perfected, and gradually stepped into the right track. But while having these progresses, we should notice at the same time, that there are still all kinds of problems existing in the present stage of the judicial practice. The rights of the victims are hard to get protected under the influence of the non-economic judicial mode and the persistence of the core value of “the paramount of the interest of nation”. The complicated judicial procedures, required by the due process, has piled up mountainous files and slowed down the judicial efficiency. The conflict between people’s growing needs of the litigation and the endurance ability of the judicial organs and its staffs has been overwhelmingly obvious. Traditional judicial mode under the ex officio doctrine is obviously hard to satisfy the needs of multiplex interests and rights. Modern criminal procedure process begins to appear the contractual trends of the criminal procedure, in the comprehensive consideration of the interests of all parties, in the balance of substantive justice and procedural efficiency, punishment of the crime and protection of the human rights, maintenance of the social order and respect of the individual right, ideal state and current demand.This has achieved satisfactory results in the systematical practice in different countries.With respect to this phenomenon and trend, this article mainly illustrates the contractual drifts in the criminal procedure, and hopefully could bring more help to the diversification of our criminal justice.In the process of the argumentation, the article starts from the drawbacks of the traditional judicial system and therefore analyses the necessity of introducing the spirit of contract into our criminal justice. It gives the growing space of the introduction of the concepts of contracts that the ignorance of the rights of the victim,difficult interrogations of people who are out of prisons and the low efficiency of the criminal procedure emerged in the traditional criminal justice.Bringing up contractual concepts in the criminal justice is not water without a source, or a tree without roots. It is a judicial concept supported with tremendous theories. This article explains the theoretical ground of the contractual trends of the criminal justice in three dimensions: restorative justice, responsive justice and the restraining of criminal litigation. Moreover, as a new judicial concept, the trends provide new materials in our theoretical studies and provide different systematic forms from the foreign judicial practice. It also analyses plea bargaining system,deferred prosecution system, and tainted witness immunity system to summarize the contractual terms in the criminal procedure and therefore make a proposal in the prosperous development in the Chinese criminal procedure.