On the Expansion of the Right of Protection and the Modernization of Criminal Procedure
Published:
2016-02-01
Abstract
From the perspective of litigation structure, the expansion of the right of defense is directly related to the power contrast between the prosecution and the defense, and then affects the overall structure of the litigation form; from the perspective of values, the right of defense, as the core content of the litigation rights of the accused, its expansion directly reflects and even determines the implementation of the spirit of human rights protection in criminal proceedings. The expansion of the right of defense has a natural relationship with the structure of litigation and the protection of human rights. As the two main lines of the modernization of criminal procedure in the world, "the optimization of litigation structure" and "the development of human rights protection" clearly show the democratization and scientific process of a country's criminal procedure system. Therefore, the expansion of the right to defense as a sign of the modernization of the world criminal procedure system has become an inevitable logic. From this perspective, examining the legislative evolution of China's criminal defense right since 1949, the author finds that the development of China's criminal procedure follows a nearly similar logical path. In other words, the expansion of the right of criminal defense in China not only optimizes the structure of criminal proceedings but also directly enhances the level of human rights protection in criminal proceedings, which can be described as promoting the modernization of criminal proceedings in China. In other words, no matter from the level of procedural structure or from the level of value concept, the three successive criminal procedure laws show profound fracture and strong contrast, which indicates the continuous promotion of the modernization process of criminal procedure in China.
Key words:Criminal Procedure Modernization Defense Right Expansion Litigation Structure Human Rights Protection
[1]From scratch, from weak to strong, not only involves the protection of the human rights of the accused in criminal proceedings, but also promotes the evolution of litigation form from traditional structure to modern structure, which can be said to represent the history of the development of criminal proceedings in the world. In other words, the expansion of the right to defense has directly promoted the modernization of criminal proceedings in the world. And if we link the modernization of criminal proceedings with the expansion of the right to defense, we will find that the right to defense "modernization is a historic transcendence of traditional society, a process of profound change involving the main areas of social life that human society has experienced since the Industrial Revolution, and thus modernization is the only universal way out for human society."[1] In this regard, the legal system, as the superstructure at the level of the national system, is the same as the economic system and the political system, and it is difficult to go beyond the path of modernization. As we all know, after decades of development, "the modernization of the rule of law as a definite process has gradually become the consensus of the state and society, and the criminal procedure law, based on its natural connection with the constitution, is in a prominent position in this process."[2] From the end of the last century to the present, many studies on the modernization of criminal proceedings have been made in the academic circles, and the modernization of criminal proceedings is concentrated in the differentiation and integration of litigation functions in the structure of proceedings, while the value concept is clearly reflected in the priority of human rights protection.
From this perspective, macroscopically examining the legislative process of criminal procedure in China, we will find that the road of expanding the right of defense can also be described as the road of modernization of criminal procedure in China. In this regard, the author will from the "human rights protection"[3]Then, the author tries to describe the evolution of the right of defense in China's criminal procedure legislation from 1979 to the present, and makes an overall analysis of the evolution of the right of defense in each stage, in order to highlight its role in shaping the character of the criminal procedure system in different stages. [2]
The theoretical significance of this study lies not only in its diachronic outline of the expansion process and characteristics of the right of defense in Chinese criminal proceedings, but also in its revealing the intrinsic relationship between the expansion of the right of defense and the protection of human rights, the structure of proceedings and the modernization of criminal proceedings, in order to confirm the theoretical proposition that "the history of the development of criminal proceedings is the history of the expansion of the right of defense".[4]
2.Principle Analysis: An Investigation of the Expansion of the Right of Defense and the Modernization of Criminal Procedure
(I) the modernization of criminal proceedingselements of investigation
From the diachronic analysis, the optimization of litigation structure and the progress of human rights protection constitute the two main lines of the evolution of criminal procedure, and the world criminal procedure is along these two paths to achieve the transition from traditional form to modern form. To this day, whether it is the German and French models of authority, the British and American models of party doctrine, or the Italian and Japanese mixed models, all of them are manifested in the optimization of the form of litigation in terms of procedural structure and the priority of human rights protection in terms of values. In other words, the optimization of litigation structure and the strengthening of human rights protection have become the two characteristics of modern criminal procedure.
1Litigation structure
As one of the basic theoretical categories of criminal procedure, the litigation structure clearly reflects the legal status and interrelationship of different litigation subjects, which can be said to reflect the characteristics of different litigation forms from a macro and abstract perspective. In other words, different litigation structures show different mechanisms for the operation of litigation.[5][3] Examining the structural characteristics of today's criminal proceedings, we will find that both the judge-led model of authority and the model of partitionism dominated by prosecutors and defenders follow a similar organizational pattern in the construction of trial proceedings and even pre-trial proceedings.[6][4] and this kind of similar organizational pattern is the prominent manifestation of the "family similarity" in the litigation form of modern criminal procedure, that is, the "accusatory litigation structure". "Although the difference between partyism and partyism is 'who dominates the litigation', 'who dominates the litigation' does not affect the existence of the accusatory litigation structure, in other words, the choice between partyism and partyism is the second level of the accusatory premise." Since the emergence of human criminal litigation, it has experienced the form of impeachment litigation, the form of inquisitive litigation, and after the form of inquisitive litigation, respectively, produced the civil law countries of the authority of the litigation structure and the common law countries of the party's litigation structure. Although there are subtle differences between the two structures in the form of expression and operation mechanism due to the tradition of the rule of law and other reasons, "as a specific historical type different from the previous litigation system, in the inner spirit and basic outline of the system, they contain more 'family similarity' or belong to the type of 'modern litigation system."
It is undeniable that due to the differences in historical and cultural traditions, there are obvious differences in the procedural structure between the two modes of litigation. However, "since the formation of the two litigation structures, with the cultural exchange, experience summary and the pursuit of the diversification of the value of criminal procedure, in the criminal procedure reform of the two major legal systems, there has been a convergence of value pursuit between them."[5] And this convergence shows from the side that there is no one-size-fits-all litigation model, let alone a perfect model of litigation model, and the view that partitionism has an innate qualitative advantage over power doctrine is unprudent and unscientific. However, if we look at these two forms of litigation macroscopically beyond the differences in specific operating mechanisms, we will find that the structure of criminal litigation is a benign interactive state based on the differentiation and integration of litigation functions, and the scientific expression of this benign interactive relationship is the familiar "separation of prosecution and trial, equal confrontation between prosecution and defense, and trial neutrality". This is also the common requirement of the accusation litigation structure for the doctrine of authority, the doctrine of parties or the hybrid doctrine referred to by scholars.
2Protection of human rights
In addition to the rational procedural structure of the modern criminal procedure system, that is, the benign interactive relationship of "separation of control and trial, equal confrontation between prosecution and defense, and trial neutrality", the modern criminal procedure system also attaches importance to the protection of human rights at the level of values and regards it as parallel to the control of crime and even the basic concept of crime control. Because, "the purpose of criminal procedure in a modern democratic society under the rule of law should be due process and the protection of human rights, and all the presuppositions of the basic theories of criminal procedure take due process and the protection of human rights as the starting point and destination."[6]
In fact, as early as the bourgeois revolution in the 17th and 18th centuries, respecting and protecting human rights, especially the rights of the accused, became the slogan of the struggle against the brutal feudal criminal justice. The establishment of the bourgeois regime made this manifesto slogan enshrined in the criminal procedure system of Western countries, and a series of systems and principles related to the protection of the rights of the accused, such as the independence of the judiciary, the separation of prosecution and trial, and the presumption of innocence, were established around the basic objectives of the protection of human rights. It can be seen that "the establishment of modern criminal procedure is based on the protection of human rights. If it were not for the pioneers of bourgeois criminal reform to sound the clarion call of human rights protection, it would be impossible to have the birth of modern criminal procedure."[7] Therefore, the protection of human rights is the driving force behind the modern criminal procedure system.
Of course, "in the early days of the establishment of the modern criminal procedure system, the protection of human rights has not been promoted to the value pursuit of competing with crime control"[8], but with the development of human civilization and the in-depth exploration of the law of litigation, the value of human rights protection has become one of the main themes of criminal justice reform in the world after World War II, especially in recent decades. "It is with the support of this concept of litigation that countries that adopt modern criminal procedure systems, despite facing different political and social conditions, still adhere to roughly the same system design with human rights protection as the priority value concept."[9]
It can be seen that the value of human rights protection is not only one of the main lines of the evolution of criminal procedure in the world, but also another important common characteristic of the modern criminal procedure system, which has become a concept that must be adhered to in criminal justice reform in backward countries under the rule of law.
From the above description, it can be seen that the optimization of litigation structure and the strengthening of human rights protection are not only the two main lines of the evolution of criminal procedure, but also the common features of the modern criminal procedure system, which includes the mode of parties and the mode of authority. In the author's view, whether as the context of the evolution of the world criminal procedure, or as a typical feature of the contemporary world criminal procedure system, the optimization of the litigation structure and the superiority of human rights protection are inseparable from the expansion of the right of defense.
1The structure of litigation and the expansion of the right of defense.
Looking back on the evolution of the right of defense, we find that its regeneration in the perspective of modern procedural law eventually shapes the accusatory and defensive litigation structure of the benign interaction of the three parties in the trial stage. However, the evolution of the right of defense did not stop there, but continued to expand after the establishment of the modern litigation structure, thus contributing to the overall optimization of the litigation form.
(1) the regeneration of the right of defense to the shaping of the litigation structure
The role of the right of defense in shaping the structure of criminal proceedings can be traced back to the first form of litigation in human society, that is, the form of impeachment litigation. But to be precise, the right to defense and defense activities that existed in the impeachment litigation model of the ancient Roman Empire do not have the substantive connotation of modern procedural law. Because in the form of impeachment litigation, the crime is regarded as a private tort, there is no state prosecution agency, the initiation of litigation depends on private complaints, and the success or failure of litigation depends mainly on the confrontation between the parties. This determines that in the form of impeachment litigation, the defender only plays a role similar to that of "agent ad litem" in civil litigation, and the rights exercised by him are only subject to the "right of endorsement" of the parties rather than independent of the "right of defense" of the parties ". However, it must also be pointed out that the parties' self-defense and the endorsement activities of such "quasi-defenders" increase the antagonism of the litigation and objectively maintain this simple equal confrontation structure in the impeachment litigation model.
When human society entered the feudal era, the private infringement of crime was abandoned under the demand of the rulers to strengthen the autocratic rule. The ruling class saw crime as a sabotage by isolated individuals against the ruling order and must therefore be severely suppressed. In this way, the state prosecution replaced the private prosecution, which was accompanied by the litigation structure of "no distinction between prosecution and trial. In such an institutional environment, there is no space for the existence of the right of defense and the necessity of its role. After the victory of the bourgeois revolution, the structure of inquisitorial litigation was fundamentally reformed, and the litigation mechanism of "separation of control and trial, no prosecution and no disregard" was gradually established; at the same time, under the litigation structure of separation of complaints, the right of defense gained space for regeneration. At this time, the right to defense is completely different from the right to defense in the initial period. On the one hand, the defender has been promoted from the initial "spokesperson" to the "rights protector" of the accused; on the other hand, the confrontation in criminal proceedings has also evolved from the confrontation between the parties and their defenders to the confrontation between the accused and his defenders and the prosecution. Therefore, the renewal of the connotation and the promotion of the status of the right of defense constitute the core content of this evolution process, and to some extent, it can be said to represent the expansion of the right of defense.
It can be seen that from the embryonic form of the initial impeachment litigation form, to the demise of the inquisitorial litigation form, to the regeneration of the modern prosecution litigation form, the evolution of the right of defense has always been accompanied by the evolution of the human criminal litigation model, and ultimately contributed to the formation of the tripartite combination of prosecution, defense and trial. Therefore, "it can be said that the formation and development of the defense function plays a decisive role in the final shaping of the structure of the 'tripartite combination' of criminal proceedings"[10], the final formation of the prosecution, defense, trial, the three party benign interaction of the prosecution litigation structure. Because "if the defense system is not established, the prosecution will lose its opposite, the neutral status of the judge will be impossible to talk about, and criminal justice will have a strong 'administrative' color".[11]
(2) The expansion of the right of defense optimizes the structure of litigation.
The value of the evolution of the right of defense to the structure of litigation is not only reflected in the "generation of the right of defense eventually molded into the legal form of litigation", but also in the expansion of the right of defense to further optimize the benign interaction between the control, defense and trial tripartite combination.[7]Among them, the extension of the right of defense from the trial stage to the pre-trial procedure plays a particularly important role in optimizing the structure of litigation.
In fact, "in the early days of the establishment of the bourgeois criminal procedure system, the defense of the defendant by lawyers only stayed at the trial stage, and lawyers had no right to intervene in the pre-trial proceedings".[12] Because of this, some scholars say that "the right to defense in various countries has gone through a bumpy process extending from the trial stage to the pre-trial procedure".[13] Even the United States, which has the most developed defense system today, is no exception, which is clearly reflected in the understanding of the Sixth Amendment to the Federal Constitution by the highest judicial authority in the United States.[8]Before the 1960 s, the Federal Supreme Court clearly pointed out in many judicial precedents that in the pre-trial interrogation procedure, it is not unconstitutional to reject the defendant's request to hire a lawyer for consultation.[9]It was not until the Matthew case in 1964 that the Supreme Court of the United States established for the first time the right of the accused to obtain the help of a lawyer during the investigation or interrogation.
Despite the ups and downs, the extension of the right of defense from the trial stage to the pre-trial procedure, especially the investigation procedure, has played an important role in the overall optimization of the litigation form. Because only in the trial stage of the "control, defense, trial" tripartite combination structure, in the perspective of modern procedural law, it is difficult to be called a complete form of litigation. In fact, the pre-trial procedure without the right to defense still has a strong color of interrogation, and the pre-trial procedure has largely been reduced to a unilateral administrative crime procedure led by the investigative agency.
Take the "Code of Trial of Felony Crimes" enacted in the French Revolution as an example, which deals with the overall structure of criminal proceedings in a phased compromise, I .e., in the trial stage, the prosecution procedure is adopted, and the defender participates in the trial and conducts a counter-debate with the prosecution; in the pre-trial procedure, the existing inquisitorial litigation system is still implemented, and the defender's assistance to the accused in litigation is prohibited.[10]The situation in France is actually the world criminal procedure from the inquisitorial to the accusation in the process of evolution of a "intermediate or transition" state, is a microcosm of the evolution process of the world criminal procedure structure. The sign of ending the state of this line in the middle of the road is "the extension of the right of defense to the pre-trial procedure".
The successful expansion of the right of defense to pre-trial proceedings, especially investigative pre-trial proceedings, on the one hand, has coordinated the institutional conflict between the accusatory trial and the interrogative pre-trial structure; on the other hand, it has also shaped the tripartite structure of prosecution, defense and trial in the pre-trial proceedings, thus making the overall structure of criminal proceedings have the basic pattern under the rule of law. Of course, the enrichment and strengthening of defense power and the evolution of defense form from entity to procedure have also realized "equal arms" to a large extent, guaranteed "equal confrontation", and thus reached the optimization of litigation structure.[11]
2Protection of Human Rights and Expansion of the Right to Defense
Undoubtedly, from the perspective of the development of criminal procedure, the generation of the right of defense has shaped the litigation structure of the tripartite combination of prosecution, defense and trial, but in the initial period of the formation of modern criminal procedure structure, the right of defense is still very weak, it is difficult to achieve equal confrontation with the right of prosecution of powerful countries, and the value of human rights protection has not been fully revealed. With the extension of the right of defense from the trial stage to the pre-trial procedure, the power of defense has been enriched and strengthened, and the form of defense has gradually expanded from a single substantive defense to procedural defense, contributing to the realization of the value of human rights protection in criminal proceedings.
(1) The expansion of defense rights and the promotion of human rights protection
As mentioned above, along with the generation of the right of defense, the criminal defender has developed from the "spokesperson" in the form of impeachment litigation to the "protector of rights" in the form of modern accusatory litigation, and this evolution itself reflects the expansion of the right of defense. At this point, the defender has obtained an independent litigation status, and the expansion of the right of defense has also entered the track of the rule of law. Among them, the expansion of the right of defense is particularly evident in the value of human rights protection in pre-trial proceedings.[12]
The pre-trial procedure is the field of direct confrontation between public and private rights. In order to find out the crime, the prosecution organ will often directly take compulsory measures to restrict or even deprive the accused person's personal freedom. However, in the absence of effective supervision and restriction, this power will inevitably be abused, thus endangering the personal safety and freedom of the accused person. "Once the means of social protection itself from criminals are abused, any tyranny will be disgrunned."[14] Based on this, Western countries under the rule of law, whether it is a common law country with a party model or a civil law country with a power model, are all guided by the concept of human rights protection, actively expanding the status of the subject of litigation in pre-trial proceedings. In fact, it has become a common feature of the modern criminal procedure system in the pre-trial procedure to strengthen the litigation rights of the accused with the right to defense as the core.
"In Germany and France, the rights of defense lawyers have gradually expanded, and they have gradually enjoyed the right to be present during interrogation, the right to be present at important investigative links, the right to participate in the decision and change of coercive measures, the right to apply for evidence investigation, and the right to read papers."[15] Compared to Germany and France, Japan and Italy have expanded the right to defense in investigative proceedings more significantly. The Italian Criminal Procedure Law gives defense lawyers a "round-the-clock" right of presence similar to that enjoyed by defense lawyers in common law countries, not only providing for the presence of defense lawyers during police interrogation of criminal suspects, but also providing for the presence of defense lawyers during searches, seizures, identification, inquests and appraisals. Although the Japanese Criminal Procedure Law does not give defense lawyers the right to be present during interrogation, it allows defenders to be present during searches and seizures and to have the right to preserve evidence.
It can be seen that, in addition to the basic powers such as the right to meet, the right to read papers, and the right to investigate and collect evidence, the connotation of the right to defense in developed countries under the rule of law has covered the right to the presence of lawyers. This "privilege", which belongs to the common law countries, has broken through the shackles of the legal system and extended to the traditional civil law system, which has greatly improved the level of human rights protection in criminal proceedings. Not only that, such as the rule of exclusion of illegal evidence, the judicial review mechanism, the continuous improvement of the legal aid system and the enhancement of the independence of the lawyer's profession, but also belong to the connotation of the expansion of the right of defense in a broad sense, which strengthens the protection and relief of the right of defense from different aspects. Undoubtedly, these systems, like the right to the presence of lawyers, embody and maintain the value of human rights protection in criminal proceedings.
(2) The expansion of the form of defense and the strengthening of human rights protection.
The rise of the international human rights protection movement has promoted the development of criminal justice reform worldwide, and in the criminal defense system, the expansion of the right of defense is not only manifested in the extension from trial to investigation, but also in the expansion of the form of defense from entity to procedure.
The procedural defense, which Dershowitz called "the best defense", has an incomparable advantage over the physical defense. Substantive defense is basically a passive defense activity against the prosecution's complaint from two aspects: finding the facts and applying the law. The procedural defense is a positive "offensive defense", which aims to initiate judicial review of the legality of the accusation and trial, and finally make an authoritative ruling that the investigation is invalid, the evidence is invalid, the public prosecution is invalid, and the judgment is invalid. In other words, procedural defense will lead to procedural legal consequences for the procedural illegal acts of the investigation and prosecution organs and the judicial organs, that is, to restrain the procedural illegal acts by depriving the "illegal interests" of illegal investigation and evidence collection, abuse of public prosecution power and judicial acts in violation of due process, which will inevitably have the effect of drawing salaries from illegal search, seizure, sampling, detention, torture, indiscriminate prosecution and judicial acts in violation of legal procedure.
The importance of procedural defense is particularly prominent in the pre-trial stage, because there is almost no space for substantive defense in the pre-trial procedure, unless the defender can put forward the material that the suspect is not at the scene of the crime, does not reach the age of criminal responsibility or belongs to the mental patient who is not criminally responsible according to law, and the above three kinds of materials only exist in a very small number of cases, substantive defences on the guilt or innocence, minor or aggravated, of the accused can only find room to play a role at the trial stage. Not only that, in the investigation stage, "even the investigators have not yet formed a stable view of the facts and legal characterization of the case"[16], in such a situation, it is really difficult to require defenders to conduct substantive defense at the investigation stage. It can be seen that in the pre-trial procedure, especially in the investigation procedure, the defense activities that can effectively play a role in safeguarding the legitimate litigation rights and interests of the accused can only be procedural defense. If there is a lack of procedural defense in the pre-trial procedure, the accused can only defend himself, which essentially means that his right to obtain the help of a lawyer is deprived. Therefore, in the pre-trial procedure, only procedural defense can provide immediate and synchronous protection for the accused, and can effectively supervise and restrain the illegal investigation and evidence collection, so as to safeguard their legitimate rights and interests to the maximum extent.
More importantly, examining the function of procedural defense from the macro perspective of the relationship between "state and society", we will find that "the right of defense itself embodies the modern democratic thinking of restricting state power with social forces. In other words, the success of the exercise of such rights is not only related to the rights of a certain defendant, but finally whether the rights of the whole society can form effective checks and balances with state power".[17] In other words, procedural defense is an effective way for social forces, including the accused, to resist the police state.
In a word, the existence and development of procedural defense in the pre-trial procedure constitutes an effective restriction on the right of prosecution in powerful countries, prevents the wanton abuse of public power, and strengthens the human rights protection of the accused.[13]
From the generation of the right of defense and its development path, its evolution can be said to run through the "afterlife" of the development of criminal proceedings ". From the embryonic form under the initial impeachment litigation form, to the demise under the interrogation mode, to the rebirth under the accusatory structure, the right of defense has gained the value of modern procedural law and promoted the final shaping of the "tripartite structure" of prosecution, defense and trial, thus laying the foundation for the structure of the criminal procedure system under the form of the rule of law. On this basis, from the point of view of power, the right of defense has been enriched and strengthened; from the point of view of scope of application, the right of defense has gradually extended from the trial stage to the pre-trial procedure; from the point of view of existence, the right of defense has completed the expansion from substantive defense to procedural defense. This expansion optimizes the balance of power between the prosecution and the defense, and ultimately contributes to the realization of "equal confrontation between the prosecution and the defense. More importantly, the equal confrontation between prosecution and defense is no longer limited to the trial procedure, but is also constructed in the pre-trial procedure, including the investigation procedure. In this way, the various stages of the proceedings have shown the characteristics of "judicialization", and the structure of criminal proceedings has been optimized as a whole.
The evolution of the right to defense has not only brought about the finalization and optimization of the litigation structure, but also fundamentally improved the situation of the accused. The generation of the right to defense in the sense of modern procedural law can be described as opening a new chapter in the protection of human rights in criminal proceedings. With the expansion of the right of defense, the accused and his defenders have gradually gained enough "equal arms" to confront the state's right of prosecution, while the emergence of procedural defense has changed the passive defense of the defense, and this transposition of offensive and defensive roles has effectively inhibited the procedural violations of the investigation and control organs. Not only that, the "equal arms" and "mutual attack and defense" brought about by the expansion of defense rights have also expanded from the trial stage to the pre-trial procedure. The resulting human rights protection effect can be described as a milestone, not only because of the "most dangerous and The most terrifying stage"[18] The intervention of defense lawyers can change the isolated situation of the accused, and it also shows "the modern democratic thinking of restricting state power with social forces".[19]
From this point of view, the modernization of criminal proceedings can be described as the evolution of the right to defense. Because, as the two main lines of the development of the world criminal procedure, the optimization of the litigation structure and the strengthening of the protection of human rights are inseparable from the generation and expansion of the right of defense. It is no exaggeration to point out that the expansion of the right of defense constitutes the core element of the realization of "the optimization of litigation structure" and "the superiority of human rights protection. In other words, the generation and expansion of the right of defense has promoted the modernization of criminal proceedings-this is the precise interpretation of the proverb that "the history of the development of criminal proceedings is the history of the expansion of the right of defense.
From the perspective of the law of the development of criminal procedure in the world, the expansion of the right of defense not only shapes and optimizes the structure of criminal procedure, but also greatly improves the level of human rights protection in criminal procedure, which can be said to represent the development course of criminal procedure in the world. Then, when we examine China's material from a global perspective, whether we will come to the same conclusion, in other words, whether the expansion of China's criminal defense rights has promoted the modernization of China's criminal procedure and to what extent it has promoted the modernization of criminal procedure. The question we must answer. In this regard, the author will start from the legislative evolution of the right of criminal defense in China, and demonstrate the effectiveness of the regeneration and expansion of the right of defense on the optimization of the structure of criminal procedure in China and the promotion of human rights protection, in order to verify whether the motto "the history of the development of criminal procedure law is the history of the expansion of the right of defense" is applicable to the Chinese context.
Although in the 30 years before the founding of the People's Republic of China, the provisions on the right to criminal defense were reflected in the Constitution, the Organic Law, and various forms of decisions, notices, and replies, these provisions did not have the connotation of procedural rule of law. Not only that, with the dispersion of the idea of class struggle in the field of criminal justice, the only rules have been abandoned, and the accused has gradually become the object of torture, with no right to defend. The birth of the Criminal Procedure Law in 1979 ended this chaotic and disorderly state, marked the generation of the right of defense in the sense of procedural law in our country, shaped the embryonic form of the modern criminal trial structure, and improved the level of rights protection.
1The regeneration of the right of defense and the reshaping of the litigation structure
During the Cultural Revolution, the Revolutionary Committee, which had no constitutional basis, was written into the Constitution, which actually played the dual role of local power organs and administrative organs at all levels; the procuratorial organs were canceled throughout the country, and although the organizational system of the courts and public security organs was preserved, it actually became a machine for concocting unjust, false and wrong cases under the control of the Revolutionary Committees at all levels.[14][20] In this way, the constitutional system established in the early days of the founding of the People's Republic of China was completely disrupted, and the chaos and disorder of the differentiation and integration of state powers would inevitably affect the normal operation of criminal proceedings. In fact, the confusion of the division and combination of litigation functions brought about by the lack of procuratorial organs in the constitutional system-"the merger of control and trial", has made the litigation system, which was difficult to establish in the early days of the founding of the People's Republic of China, degenerated into the form of inquisitive litigation. In such an institutional environment, there is no room for the survival of the right to defense. In fact, since the expansion of the "anti-rightist struggle", the color of questioning in criminal proceedings has appeared, and lawyers' defense has gradually been branded as anti-party and anti-people class.[15]As the scholar said, "By the end of the Cultural Revolution, the criminal litigation model of New China had gone through three stages: strong authority, a tendency of inquisitionism to a thorough inquisitionism litigation model".
In other words, the retrogression of criminal proceedings to the form of interrogation is also the process of the demise of the right of defense. Therefore, in order to reshape the existing litigation structure, it is necessary to enhance the litigation status of the accused and give the accused the right to defense. In this regard, the 1979 Criminal Procedure Law clearly stipulated in the General Provisions that "the defendant has the right to defense, and the people's court has the obligation to ensure that the defendant is defended". At the same time, it made a special chapter on the criminal defense system, which marked the right of criminal defense. Rebirth.[16]This rebirth is not a simple reply to the defense right in the golden age of legal development in the early days of the founding of the People's Republic of China, but a sublimation at a higher level. This is not only because the provisions of the criminal procedure law on the defense system are richer than in the initial period of the legal system, but more importantly, they conform to the modern spirit of the rule of law, which conforms to the procedural law connotation of the right to defense as a litigation right. In this way, the regeneration of the right of defense, supplemented by the restoration of the right of trial and the reconstruction of the procuratorial organs, in fact, the structure of the prosecution, defense and adjudication of the three parties to participate in the crime pursuit and punishment mechanism. Although far from the high degree of differentiation and integration of litigation functions in the modern litigation model, it has shaped the prototype of the modern criminal trial structure after all.
In this regard, some scholars call it "the model of strong authority".[17]The reason why it is called the strong authority doctrine model is mainly because, compared with the civil law system authority model of the same period, the right to defense in the 1979 Criminal Procedure Law of China is limited to the trial stage, the strength is weak, the form is single, and it is difficult to resist the strong authority factors, and this also shows from the side that the expansion of the right to defense is the inevitable path for the optimization of China's litigation structure in the future.
2The regeneration of the right of defense and the dawn of human rights protection
Obviously, the establishment of "the defendant has the right to defense" as the basic principle of the Criminal Procedure Law, supplemented by a special chapter on criminal defense, demonstrates more rights protection than the form of interrogation during the Cultural Revolution, which has no right to defense. Of course, the protection of rights in the 1979 Criminal Procedure Law is not limited to the provisions of the right to defense, such as the establishment of the principle of equality in the application of the Criminal Procedure Law; the emphasis on the division of responsibilities, mutual cooperation and mutual restraint of the three organs of the Public Security Law; the provision that the three organs of the Public Security Law should guarantee the litigation rights enjoyed by the participants in the proceedings in accordance with the law; the prohibition of extorting confessions by torture. However, most of these provisions prevent the investigation and control organs from infringing upon the legitimate rights and interests of the accused from the perspective of "limiting power (power)" or "obligation". Compared with the "right of defense and defense activities" of safeguarding the legitimate rights and interests of the accused from the path of "expanding power (profit)" and "rights", the color of rights protection is much inferior.
Not only that, if we connect the provisions of "right of defense" with the litigation task of "protecting innocent people from criminal investigation" and "protecting citizens' personal rights, democratic rights and other rights", we will find that the expression of right of defense is not the need of wording, but the re-examination of criminal procedure system after ten years of catastrophe, which shows that legislators have realized that criminal prosecution is not just the "knife" of proletarian dictatorship ", this point can be confirmed by the statement of Comrade Peng Zhen, who presided over and led the legal work at that time.[18]The addition of guarantees of civil rights to the mandate of the 1979 Code of Criminal Procedure is a direct response to human rights abuses in times of upheaval.[19]The most direct and prominent manifestation of this response is the legislation to re-establish the defendant's right to defense.
From this point of view, "since 1978, China's criminal procedure legislation has begun to take the protection of rights as a basic guiding ideology, although concepts such as 'human rights' have not been used. Therefore, the so-called 'great turning of ideas' did not begin in the 1990 s, and the 1979 Criminal Procedure Law was the key period for the turning of ideas".[21] In the author's opinion, the right to defense and other rights protection factors implanted in the 1979 Criminal Procedure Law are like a little candle in the dark night. It can be described as the initial embodiment of the "human rights protection spirit" in my country's criminal proceedings. It is along these initial "rights protection concepts" that the value concept of human rights protection has sprouted and continued to grow. In short, although the Criminal Procedure Law of 1979 is full of the haze of "heavy attack and light protection", we vaguely see the dawn of human rights protection.
The 1979 Criminal Procedure Law established a mechanism for the prosecution, defense and adjudication of crimes, but this tripartite combination only existed at the trial stage. The birth of the Criminal Procedure Law in 1996 extended the right of defense to the pre-trial procedure, expanded the living space of the right of defense, and was of great significance for breaking the closed investigation and control procedure and improving the level of human rights protection in the pre-trial procedure.
1The extension of the right of defense and the adjustment of litigation structure
Looking at the history of institutional changes in China's criminal procedure since 1979, it is not difficult to find that procedural judicialization is undoubtedly a main line during the implementation period.[22] In my opinion, the judicialization of procedures includes the judicialization of procedure construction and the judicialization of procedure operation, and the judicialization or litigation of procedure construction, as the premise and basis of the judicialization of procedure operation, is bound to become the top priority of our attention. It must be objectively pointed out that the 1979 Criminal Procedure Law only realized the judicialization of the procedural structure in the trial procedure, and the pre-trial procedure as a whole is still manifested as a one-way prosecution of criminal suspects by the investigation and control agencies.
Although the criminal suspect, as the original subject of the right of defense, enjoys the right to defend himself in the pre-trial procedure, the right of defense of the defense lawyer, as the derivative subject of the right of defense, is the natural connotation of modern criminal defense, which is sufficient to effectively resist the powerful national right of prosecution. However, it is regrettable that under the system setting and practice environment in China at that time, it is difficult for the criminal suspect to defend himself. Because of the reservation of "the obligation to answer truthfully", self-defense is also branded as "stubborn resistance. It is no exaggeration to say that under the system of criminal procedure in 1979, the accused not only did not have the right to obtain the help of a lawyer in the pre-trial procedure, but even the right to defend himself existed in name only. As a result, the pre-trial procedure has become a unilateral punishment procedure dominated by the prosecution organ. The criminal procedure law of 1996 gives the criminal suspect the right to entrust a defender in the stage of examination and prosecution, so that the right of defense in the pre-trial procedure obtains the connotation of modern procedural law.[20]Not only that, lawyers can also intervene in the investigation process to provide legal assistance to the criminal suspect. Although they have not obtained the status of defender, after all, they have freed the accused from the situation of isolation.[21]
In this way, in the history of the development of criminal procedure in China, the right of defense was involved in the pre-trial procedure for the first time, which paved the way for the transformation of the pre-trial procedure, especially the investigation procedure. Pre-trial procedural litigation is a typical feature of modern criminal proceedings different from traditional criminal proceedings, and throughout the developed countries of the rule of law in the West, even Germany and France, which have the strongest color of authority, have established a procedural structure in which the tripartite participation of prosecution, defense and adjudication is involved in major investigative acts. However, due to the unique constitutional system of our country, it is difficult for the people's court to intervene in the criminal pretrial procedure, which determines that the litigation of the criminal pretrial procedure in our country can only be opened from the intervention of the right of defense.[22]Not only that, the expansion of the depth and breadth of the right of defense intervention will also have a huge impact on the traditional unilateral prosecution structure, improve the institutional environment of the pre-trial procedure, and lay the foundation for the final litigation of the pre-trial procedure.
In fact, the extension of the right of defense to the pre-trial procedure not only promotes the litigation of the structure of the pre-trial procedure, but also indirectly promotes the consolidation of the litigation structure of the trial procedure, catering to the party-based transformation of the traditional trial model. "Modern criminal proceedings are based on the principle of evidentiary adjudication, and the determination of facts and applicable laws are all based on evidence. Although the presentation and cross-examination of evidence take place in the trial stage, the collection and preservation of evidence take place in the pre-trial stage. Therefore, the pre-trial stage is directly related to the trial stage, and to a certain extent determines the outcome of the trial."[23] To put it out, without the intervention of defense lawyers in the pre-trial procedure, the investigation and evidence collection behavior of the investigation and prosecution organs cannot be effectively restricted and supervised, and it is also difficult to collect evidence materials that are beneficial to the accused, which eventually leads to the overwhelming advantage of the evidence of the prosecution over the evidence of the defense, and the equal confrontation, equal protection and neutrality of the judgment cannot be realized to any extent, the entire trial could easily evolve into a one-man show for the prosecution. Therefore, under the litigation form of investigation centralism in our country, extending the right of defense to the pre-trial procedure is of great significance to realize the equal confrontation of prosecution and defense, promote the materialization of the trial and ensure the neutrality of the judgment.
From this point of view, the extension and expansion of the right of defense not only weakens the color of the pre-trial procedure, but also promotes the consolidation and operation of the prosecution-type trial model of "separation of prosecution and trial, equal confrontation between prosecution and defense, and trial neutrality.
2The extension of the right of defense and the initial manifestation of human rights protection.
The system design in a country's criminal pretrial procedure directly reflects the human rights protection situation in the field of criminal justice and even the whole society, because "the more dangerous it is, the more it can show the level of human rights protection in a society."[24] Throughout the developed countries under the rule of law in the West, in order to protect the human rights of the accused from the wanton violation of the public power of the state, it has become a general consensus to expand and strengthen the litigation rights of the accused in the pre-trial procedure. In this regard, the ex officio-doctrine and the party-doctrine countries have followed almost the same logical path, the most typical manifestation of which is the establishment of judicial authorization and judicial relief mechanisms, the establishment of the principle of not forcing self-incrimination and the continuous expansion of the scope of participation of defense lawyers in the investigation process.
Obviously, the judicial review mechanism and the privilege of opposing self-incrimination are missing in the 1996 Criminal Procedure Law, which determines that the human rights protection in our country's criminal pretrial procedure can only rely on the expansion of the right of defense. In other words, the expansion of the right to defense directly determines the level of human rights protection in our pretrial proceedings. From the perspective of the litigation stage covered by the right of defense, the 1996 Criminal Procedure Law advanced the time for defenders to intervene in the litigation to the stage of examination and prosecution. From the perspective of conditional defense rights, the 1996 Criminal Procedure Law gives defense lawyers the right to read papers, meet and communicate, and investigate and collect evidence during the examination and prosecution stage. From the perspective of the guarantee of the exercise of defense rights, the 1996 Criminal Procedure Law expanded and strengthened the legal aid system.[23]On the whole, these provisions have improved the degree of realization of the right of the accused to obtain the assistance of lawyers, and greatly improved the level of human rights protection in the pre-trial procedure.
Not only that, the extension of the right to defense in the Criminal Procedure Law in 1996 also promoted the evolution of the "concept of protection of rights" to the "concept of protection of human rights" in criminal proceedings in China. As mentioned above, the protection of rights was implanted in the Criminal Procedure Law of 1979, which can be described as the initial embodiment of the "spirit of human rights protection" in my country's criminal procedure system, and the guiding ideology of protecting human rights is also following these initial The "concept of rights protection" sprouted and continued to grow, but one thing we have to admit, that is, the original legislation did not include the idea of human rights protection. Because for a country that has just emerged from chaos, its primary pursuit is the restoration of order. In other words, what needs to be solved urgently is to realize the evolution that cannot be achieved by law, and the interpretation of the desire for order restoration in legislation is the admiration of power factors. From this point of view, it is impossible to breed the idea of human rights protection in an era when the remnants of class struggle have not been completely eliminated and the market economy has not yet started.
It must be calmly pointed out that the implementation of the concept of human rights protection in the Criminal Procedure Law began in 1996, because the in-depth development of the commodity economy has made the freedom and equality of market subjects unprecedentedly respected and developed, and to a great extent stimulated The growth of civil rights awareness. At the same time, the continuous expansion of the scope of opening to the outside world makes the concept of human rights protection continue to be imported into China. Therefore, the transformation of economy and the transformation of ideas will inevitably be diffracted into the field of criminal procedure, leading to the concern about the protection of human rights of the subject of litigation. One of the most prominent manifestations is to try to break through the object status of the criminal suspect and the defendant in the traditional criminal procedure, which is clearly reflected in the expansion of the right of defense in the criminal procedure legislation.
It can be seen that the expansion of the right of defense is the self-improvement of criminal proceedings to meet the needs of the new era, which marks the penetration of the idea of human rights protection in China's criminal proceedings. So far, the concept of human rights protection has evolved from the initial desire for the restoration of legal order to a conscious and active pursuit, although this pursuit has not yet reached the level of crime control, but after all, it has realized the field of criminal proceedings. The idea of human rights protection from scratch has taken a solid step in my country's criminal procedure system from traditional to modern.
Examining the setting of the right of defense in the current criminal procedure law, the author finds that the expansion of the right of defense in the new law has achieved a new breakthrough in terms of power, form and application stage, and has promoted the further optimization of the overall structure of criminal procedure and the strengthening of human rights protection.
1The expansion of the right of defense and the optimization of the structure of litigation.
The differentiation and integration of litigation structure, as the common characteristics of modern criminal procedure, is mainly manifested in the transformation of the parties to the trial procedure in the criminal procedure law in 1996. The positive interaction between the control, defense and adjudication resulting from this transformation is only basically constructed in the first instance procedure, and has not been established in the pre-trial, second instance, retrial and death penalty review procedures. Looking at the current criminal procedure law, the author finds that the substantive participation of defense lawyers in litigation shows a trend of expanding forward and backward from the first instance procedure as the node, which promotes the "judicial adjustment of the structural relationship between the subjects of the procedure as a whole, and promotes the continuous evolution of the structure between the subjects from the unilateral procedure structure and the double procedure structure to the tripartite procedure structure".[25]
From the point of view of the first instance procedure, the current criminal procedure law defines the conditions for witnesses and appraisers to testify in court, and establishes an expert-assisted cross-examination system, which in fact strengthens the defense's right to cross-examination; the establishment of the rule of exclusion of illegal evidence enriches the power of defense, expands the form of defense, and enables the defendant and his defenders to carry out targeted procedural defense against the illegal evidence collection by the investigative organs.[24]From this point of view, the strengthening of the right of defense in the first instance procedure has further consolidated the results of the reform of China's trial model and made the litigation structure of "equal confrontation between prosecution and defense" more solid.
From the perspective of the second instance procedure, under the original system framework, the litigation structure of the benign interaction among the prosecution, defense and adjudication has not been formed, or strictly speaking, it has not been fully formed. This is mainly due to the trial mode of "written trial as the main part and court trial as the auxiliary" in practice. The basic premise of establishing the modern litigation structure of "equal confrontation between the prosecution and the defense" is that the defense can actually participate in the formation of the decision-making process, because "the participation and autonomous exercise of rights by interest subjects is sufficient to establish the moral acceptability of the procedural structure"[26], in the case of interest subjects difficult to participate in litigation, even the three-party form of litigation structure is not available, not to mention the equal confrontation of prosecution and defense. In this regard, the current criminal procedure law expands the scope of the second instance hearing, which in essence strengthens the defense's right to participate in the procedure and the right to express opinions, and initially constructs the litigation-based trial method.[25]
From the perspective of the degree of review of the death penalty, the existing procedure can be said to be a forbidden area of the "right to defense".[26]Because compared with the first and second instance, the death penalty review procedure has the lowest degree of litigation in my country's criminal proceedings, and there is no space for defense lawyers to intervene, and the procedure as a whole shows obvious one-way and closed operation characteristics. In this regard, the current criminal procedure law gives defense lawyers the right to intervene in the death penalty review procedure. Although it only creates a loose tripartite structure, it has been completely closed for 30 years to pry open a gap, which is a key step on the road of "litigation" of the death penalty review procedure, and also paints a picture of the future development of the death penalty review procedure for us, that is, to further realize the differentiation and integration of different litigation functions, gradually establish the "three-headed case" litigation structure.
As mentioned above, the expansion of the right of defense presents a trend of forward and backward expansion from the first instance procedure as the node, and in a sense, the expansion of the right of defense in the pre-trial procedure is more significant for the overall optimization of the litigation structure, because the pre-trial procedure, especially the litigation of major investigative acts, has always been one of the most thorny issues that have plagued the modernization of criminal proceedings in China for nearly 30 years. What is gratifying is that the relevant amendments made by the current criminal procedure law to the pre-trial procedure are showing the tension of breaking through the tradition.
Although the 1996 Criminal Procedure Law advanced the time for the defender to intervene in the proceedings to the stage of examination and prosecution, and provided for the possibility of meeting the suspect and providing legal assistance at the stage of investigation, in general, the single-mode and two-party procedural structure is still the main form of litigation in the pre-trial procedure.[27]In the pre-trial procedure, defense lawyers lack legal channels to interact with the investigation and control organs, and can only have single-line contact with their clients. For example, in the investigation stage, defense lawyers cannot investigate and collect evidence, put forward opinions, and intervene in the arrest approval procedure. In the prosecution stage, although they can investigate and collect evidence and read papers, they cannot intervene in the examination and prosecution procedure. In this way, in the whole pre-trial procedure, only the review and prosecution stage shows a slight confrontation color, and the investigation stage does not have the slightest confrontation at all.[28]
In this regard, the current criminal procedure law gives defense lawyers the right to intervene in the examination and approval of arrest, examination and prosecution, and to put forward opinions at the end of the investigation, so that from the beginning of the investigation procedure, defense lawyers can carry out corresponding confrontation with the investigation and control organs, "to some extent, it means that China's confrontation system is gradually extending to the investigation stage".[27] As mentioned above, the right of defense is involved in the pre-trial procedure for the first time, which paves the way for the litigation transformation of the pre-trial procedure, especially the investigation procedure in our country. The single-line contact between the defense lawyer and the defendant is changed to the two-way contact with the defendant and the investigation and control organ, which is the development of the litigation of the pre-trial procedure on the basis of the existing bedding.
Although the current criminal procedure law has not adjusted most investigative acts from the original unilateral structure to a two-party or three-party structure, the increase in the substantive participation of the defense is worthy of recognition, especially the revision of the arrest procedure, which means that the legislation has begun to structure a detention decision procedure with the characteristics of a three-party structure, and this three-party decision procedure is the direction of our country's pretrial procedure.
2The expansion of the right of defense and the protection of human rightsDevelopment
"The current criminal procedure law will guarantee the defendant's right to defense to the height of the basic principles of criminal procedure law"[29][28] As scholars have said, "No litigation system or procedure has such a close relationship with 'respecting and protecting human rights' as the criminal defense system. It can even be said that the criminal defense system is to respect and protect human rights in criminal proceedings. Survive and develop".[29] This outline revision conforms to the proper status of the right of defense in the litigation rights system and conforms to the basic task of "respecting and protecting human rights".[30]It lays a solid and direct legal foundation for the expansion of the right of defense. Based on this, the current criminal procedure law has made a comprehensive expansion of the right of defense.[31]"This amendment not only emphasizes that criminal suspects and defendants are the primary objects of litigation rights protection in criminal proceedings, but also emphasizes the core position of the right of defense in the litigation rights system of criminal suspects and defendants".
From the stage of coverage, the right of defense shows an expansion trend with the first instance procedure as the node. In the pre-trial procedure, the status of lawyer "defender" is extended to the investigation procedure, and in the trial procedure, the defense lawyer can be involved in the death penalty review procedure. From this point of view, the intervention and participation of defense lawyers runs through all stages of the litigation, so that the right of criminal suspects and defendants to obtain the help of lawyers can be realized. From the point of view of the form of defense, the current criminal procedure law for the first time clearly defines the substantive defense and procedural defense of the defense pattern, so that defense lawyers can choose the form of defense according to the stage of litigation, especially the pre-trial stage of the procedural defense is of great significance to the suppression of illegal investigation and prosecution.[32]Compared with the further extension of defense coverage and the expansion of defense forms, the expansion of defense rights, especially the expansion of means defense rights and safeguard defense rights, is more significant for the strengthening of human rights protection.
The current criminal procedure law has made corresponding amendments to the defense lawyer's right to meet, the right to read papers, the right to investigate and collect evidence and other means of defense rights. Regarding the difficulty of meeting, the current Criminal Procedure Law clearly stipulates that regardless of any stage of litigation, except for three types of special cases, defense lawyers can directly meet in the detention center with the "three certificates" without the approval of the investigative agency; regarding the meeting risk, the current criminal The procedure law stipulates that from the date of transfer for review and prosecution, defense lawyers can meet with criminal suspects and defendants to verify relevant evidence. In this way, the right of defense counsel to meet is guaranteed in legislation and makes the meeting substantive. With regard to the difficulty of marking papers, the current criminal procedure law has expanded the scope of marking papers from the litigation documents, technical appraisal materials and copies of the main evidence in the trial stage to all the case files, thus solving the problem of "difficulty in marking papers. Regarding investigation and evidence collection, "especially the question of whether there is the right to investigate and collect evidence at the investigation stage is slightly complicated, and there are different views"[33][30], this is mainly because the current criminal procedure law affirms the identity of the defense lawyer as the defender in the investigation stage, but the provisions on the duties of the defense lawyer in the investigation stage do not explicitly include investigation and evidence collection. In this regard, the author believes that since the defense lawyer in the investigation stage has the status of a defender, then of course to enjoy the right to investigate and collect evidence, but based on the principle of investigation secret requirements of the scope of investigation and evidence should be limited, compared to the original criminal procedure law in the investigation stage lawyers do not have the right to investigate and collect evidence is a great progress.[34]At this point, the mountain on the road to solve the "three difficulties of criminal defense" on the grounds of "the effectiveness of the law" has been removed.
No remedy is no right, the current criminal procedure law in the expansion of the right to defense, but also for the right to defense relief and protection provides an effective way. For example, the defender is given the right to appeal and accuse the case-handling personnel and their staff of obstructing their exercise of litigation rights in accordance with the law and violating the case-handling behavior, and the scope of legal aid can be expanded, the litigation stage can be advanced, and the method can be adjusted. For example, the initial establishment of a guarantee mechanism for defenders not being illegally investigated by investigative agencies for perjury. These provide a practical guarantee for preventing the falsification of the right of defense and ensuring the effective exercise of the right of defense.
In contemporary and any other era, the focus of the development of law is not in legislation, nor in jurisprudence or judicial decisions, but in society itself.[31] Therefore, after discussing the strengthening of human rights protection by the expansion of the right of defense in empirical law, it is necessary to explore the evolution of human rights protection thought in criminal proceedings from a more macro and profound perspective. Only in this way, the understanding of the protection of human rights in China's criminal proceedings will not remain in the dry and superficial understanding of the system.
As Professor Ji Xiangde said, "unlike the revision of the Criminal procedure Law in 1996, which mainly considers the reform and opening up of Chinese society and emphasizes integration with international standards, the introduction of the amendment to the Criminal procedure Law in 2012 is mainly to respond to the inherent needs of the rapid transformation of Chinese society."[32] this transformation is prominently manifested in the fact that "China has changed from a 'whole society' (or a unified society) to a 'diversified society', that is, the diversification of economic composition and the distribution of economic interests, the diversification of social life, the diversification of forms of social organization, and the diversification of employment posts and forms of employment."[33] In other words, the traditional unitary social structure of our country has undergone profound changes under the strong impact of economic reform, and diversified interest groups independent of the state have been cultivated. In fact, China has evolved from a consistent society to a pluralistic society. As Unger said, "In the case of multiple groups, in order to fairly adjust various interest relationships, a set of neutral, universal and autonomous legal norms must be formulated."[35][34] In conclusion, this kind of pluralistic social structure will inevitably produce strong demands to restrict state power, and the most concentrated and direct manifestation of this demand in criminal proceedings is to strengthen the right of defense, because "the right of defense itself reflects the modern democratic idea of restricting state power by social forces. In other words, whether the exercise of this right is successful or not is not only related to the rights of a certain defendant, ultimately, it is closely related to whether the rights of society as a whole can form effective checks and balances with state power".
From this point of view, the expansion of the right of defense in the current criminal procedure law meets the needs of the new pattern of state-society relations for the restriction of state power, and shows that the concept of human rights protection has been further developed in a broader and profound perspective. and has been internalized into the inherent character of China's criminal procedure.
From the above inquiry, it can be seen that the regeneration of the right of defense reshapes the procedural structure of the joint participation of the prosecution, defense and adjudication at the trial stage; the extension of the right of defense to the pre-trial procedure weakens the color of the authority of the pre-trial procedure, lays the foundation for the litigation of the structure of the pre-trial procedure, and at the same time promotes the consolidation of the litigation structure of the trial procedure, catering to the traditional trial mode; the further expansion of the depth and breadth of the right of defense not only makes the intervention and participation of defense lawyers through all stages of the proceedings, but also promotes the extension of the modern procedural structure from the trial procedure to the pre-trial procedure, marking the evolution of the original one-way administrative pre-trial structure to the modern pre-trial structure of equal confrontation between the prosecution and the defense. This evolution has shown a kind of tension to break through the tradition, indicating that the change has touched the deep water area of China's criminal procedure modernization, and this also depicts the proper path of China's criminal pretrial procedure modernization in the future. From this point of view, looking back on the changing course of criminal proceedings in China since 1979, the expansion of the right of defense has shown a trend of extending from the node of the first instance procedure to the forward and backward stages of litigation, while the pattern of "equal confrontation between prosecution and defense" brought about by the expansion of the right of defense has been established in all stages of criminal proceedings.
The expansion of the right of defense not only optimizes the litigation structure, but also greatly improves the level of human rights protection in China's criminal proceedings. In particular, the enrichment of the right of defense and the expansion of the form of defense to procedural defense not only increase the means of negotiation and confrontation between criminal suspects, defendants and their defenders and the investigation and control organs, but also strengthen the relief and protection when litigation rights are violated. In fact, under the background that the judicial review mechanism and the rule of the right to silence have not been established, the realization of human rights protection in the pre-trial procedure mainly depends on the criminal defense system, which highlights the value of human rights protection of the right to defense in China's criminal proceedings.
Not only that, if the expansion of the right to defense is linked to the dominant factors in the previous amendments to the Criminal Procedure Law, we will find that from the initiation of the concept of rights protection, to the initial exposure of the idea of human rights protection, to the in-depth implementation of the concept of human rights protection, the expansion of the right to defense can be said to represent the evolution of the value of human rights protection in Chinese criminal proceedings. This evolution not only depicts the stage characteristics of the development of the concept of human rights protection, but more importantly, it extracts the logical connection between "the expansion of the right of defense" and "the emergence and development of the concept of human rights protection" from the perspective of sociology of law.
All in all, the expansion of the right to defense has promoted the optimization of the overall structure of criminal proceedings and promoted the progress and development of human rights protection, which can be described as a sign of the modernization process of criminal proceedings in China. Therefore, it can be said that "the history of the development of criminal proceedings in China is the history of the expansion of the right of defense".
References
[1]For a study on the modernization of criminal procedure, see Ma Guixiang and Hu Ming: "Due Process and the Modernization of Criminal Procedure", China Procuratorial Press, 2007 edition; Bian Jianlin: "The Modernization of Criminal Procedure", China Legal Press, 2003 edition; Zuo Weimin, Wang Ling: "The Outline of the Modernization of China's Criminal Procedure Legal System", in "Legal Science", No. 1, 1995; Zuo Weimin, Wan Yi: "Research on some basic theoretical issues of the reform of China's criminal procedure system", published in the fourth edition of Chinese Law, 2003; Wu Hongyao: "Criminal Procedure in the Perspective of Modern Law", published in "Political and Legal Forum", No. 2, 2004; Hu Ming and Huang Pei: "Methodology of Legal Research and Modernization of Criminal Procedure-A Review of Methodology of Legal Economics Research", published in "Political and Legal Forum", No. 5, 2007; ren Zhehua, "The Modernization of China's Criminal Procedure System", in Journal of Wuhan University (Philosophy and Social Sciences Edition), No. 7, 2010.
[2]Regarding the subject of human rights in criminal proceedings, the focus of academic controversy is mainly on whether to include other participants in the proceedings other than the accused, and whether to include collective human rights. Obviously, the idea of collective human rights is rejected by the mainstream view of the academic community. However, there are different views on whether the subject of human rights includes other participants in the proceedings: some scholars believe that victims, as well as witnesses and other participants in the proceedings also belong to the subject of human rights in criminal proceedings. However, both views agree that "the focus of human rights protection in criminal proceedings should be on the accused. Therefore, the "human rights protection" mentioned by the author in this article mainly refers to the human rights of criminal suspects and defendants.
[3]The structure of criminal proceedings is determined by a certain purpose of the proceedings, and by the main proceedings and the basic way of litigation in the rules of evidence embodied in the legal status and mutual relations of the three parties of complaint, defense and adjudication. See Li Xinjian, "On the Structure of Criminal Procedure", China University of Political Science and Law Press, 1992 edition, p. 7. The structure of criminal procedure, also known as the form of litigation or the mode of litigation or the form of litigation, although the appellation is not the same, but its core connotation refers to "the legal status and interrelationship between different litigation subjects", which has reached a consensus in the academic circles.
[4]See [Japan] Haoyi Matsuo: "Japanese Criminal Procedure Law", translated by Ding Xiangshun, Renmin University of China Press, 2005 edition, p. 130; [Japan] Shouichi Taguchi: "Criminal Procedure Law", translated by Liu Di and others, Law Publishing House, 2000 edition, p. 89; [Japan] Shouichi Taguchi: "Criminal Defense System", in [Japan] Haruo Nishihara: Formation and Characteristics, china Law Publishing House, Japan Chengwentang, 1997 edition, p. 432. The history of criminal procedure is the history of the expansion of the right to defense, which is sometimes translated as "the history of criminal procedure civilization is the history of the expansion of the right to defense" or "the evolutionary history of criminal procedure can also be said to be the history of the development of the right to defense". From the diachronic analysis, the development of criminal procedure is the evolution from traditional criminal procedure to modern criminal procedure, so it can be said that the modernization of criminal procedure is the way to expand the right of defense. In other words, the expansion of the right to defense has promoted the modernization of criminal proceedings, which is also the focus of this paper.
[5]When it comes to impeachment litigation, people will think of private prosecution. When it comes to the form of inquisitorial litigation, people will think of no distinction between prosecution and trial and state prosecution. When it comes to the form of power-based litigation, people will think of the judge's "positive and neutral" litigation attitude of actively using his power to find out the truth of the case. When it comes to the litigant litigation mode, people will think of equal confrontation between prosecution and defense and "negative neutrality".
[6]For example, in the trial procedure, both the common law countries and the civil law countries have established the litigation pattern of "separation of control and trial, equal confrontation between charge and defense, and trial neutrality"; in the pre-trial procedure, the two legal countries have generally established the principle of judicial authorization and the principle of judicial relief. Not only that, with the continuous integration of the two legal systems, the traditional civil law countries generally establish the right to silence, coupled with the continuous expansion of the scope of participation of defense lawyers in the investigation procedure, so that the traditional model of authority in the pre-trial procedure also shows the nature of "litigation.
[7]After the regeneration of the right of defense in the perspective of modern procedural law, it shows a trend of continuous expansion, mainly in the following three aspects: the enrichment and strengthening of the right of defense; the expansion of the right of defense from the trial procedure to the pre-trial procedure; the form of defense from the entity defense to the entity and procedure and even the emphasis on the procedural defense. Among them, this part focuses on the expansion of the right of defense to the pre-trial procedure, to explore the optimization of the overall structure of criminal proceedings by the expansion of the right of defense. Of course, the enrichment and strengthening of defense power, as well as the change of defense form also play a role in the optimization of litigation structure, which the author will mention in this part. However, the enrichment and strengthening of the right of defense, as well as the changes in the form of defense, reflect the value of human rights protection of the expansion of the right of defense, which will be discussed later.
[8]The Sixth Amendment to the United States Constitution states: "In all criminal cases, the defendant has the right... to the assistance of a lawyer in his defense". This is the constitutional basis for the defendant to obtain a lawyer's defense in the pre-trial procedure.
[9]See Jiang Lihua and Yang Cheng, eds., A Probe into the System of Foreign Criminal Procedure, Law Press, 2000, pp. 65-68.
[10]See [French] Caston Stefani: "The Essence of French Criminal Procedure Law (Part I)", translated by Luo Jiezhen, China University of Political Science and Law Press, 1998 edition, pp. 88-92.
[11]Professor Ji Xiangde explained in detail the optimization of the litigation structure of "equal arms and equal confrontation" in his theory of "equality of prosecution and defense", which will not be repeated here.
[12]Professor Gu Yongzhong interprets the modern legal connotation of the right to defense as: the right to means of defense, I .e. the right to defend directly against the prosecution and accusation, such as the right to make statements, the right to refute and the right to debate; the right to conditional defense mainly refers to the right to provide conditions for the exercise of the right to means of defense, such as the right to meet, the right to communicate, the right to investigate and collect evidence, the right to read papers; the right to safeguard defense mainly refers to the right to protect the litigation rights of criminal suspects and defendants in the course of litigation and other rights from infringement, such as the right to exclude illegal evidence, the right to appeal for procedural violations, and the right to appeal. Participated in Gu Yongzhong: "Interpretation of the Modern Rule of Law of Criminal Defense -- Also on the Improvement of my country's Criminal Defense System", published in "Chinese Law" 2009 No. 6. In the author's view, Professor Gu refers to the means of defense rights, conditional defense rights and the right to protect the right to defend the power, in other words, the right to defend is a set of means of defense rights, conditional defense rights and the right to protect the right to defend a collection of rights, therefore, the expansion of the right to defend the power includes the expansion of the above three rights. And if we look at the process of expansion of the right of defense from the perspective of the right of defense, its connotation shows a trend of expansion from the right of means to the right of condition and the right of guarantee, which actually coincides with the trend of the right of defense from the trial procedure to the pre-trial procedure, from the substantive defense to the procedural defense.
[13]Of course, procedural defense is also applicable to the trial procedure, but the vast majority of procedural violations of personal rights and litigation rights occur in the pre-trial procedure, so the pre-trial procedure, especially the investigation procedure in the procedural defense of human rights protection value is more prominent, and thus become the focus of this part of the argument.
[14]Article 22 of the 1975 Constitution stipulates: "The local revolutionary committees at all levels are the permanent organs of the local people's congresses at all levels.local governments at all levels ".
[15]Lawyers appearing in court to defend criminal defendants are considered to be "speaking for the bad guys and justifying the crime". Many people criticize lawyers' defense, saying that the lawyer system is a "capitalist system". Lawyers' participation in criminal defense is to "exonerate the defendant" and "lose the class position". Lawyers' insistence on practical matters and the law is "not the leadership of the party, but the supremacy of law" and so on. See Xie Youping, Social Order and the Lawyer's Profession: The Social Orientation of the Lawyer's Role, Law Press, 1998, p. 195.
[16]See article 8 of the General Provisions and articles 26 to 30 of chapter IV of the 1979 Code of Criminal Procedure.
[17]In 1979, the Criminal Procedure Law realized the transformation of China's criminal procedure system from the inquisitorial mode to the strong authority doctrine mode, and established the basic structure of China's criminal procedure at that time, that is, the "strong authority doctrine" litigation mode, which mainly has three characteristics: first, the tripartite separation of prosecution, defense and adjudication constitutes the main body of the criminal procedure structure; Second, the prosecution and defense are both opposite and unified, determine the unique legal relationship between the two; Third, the two sides of the control both cooperate and restrict, forming a unique mutual relationship. See Li Xinjian.: "On the Structure of Criminal Procedure", China University of Political Science and Law Press, 1992 edition, p. 150.
[18]In the process of drafting the 1979 Criminal procedure Law, Peng Zhen pointed out: "the legislative task is very heavy and urgent, and we should sum up the lessons of the 'Cultural Revolution', but we should not hold a general retreat, but when drafting and enacting laws, we should sum up the lessons and make targeted provisions in the law to prevent these problems from happening again in terms of the legal system."
[19]The drafting of the Criminal procedure Law began as early as before the Cultural Revolution, when the draft stipulated the task of criminal procedure to "expose crimes, prove crimes and punish crimes", which did not include the protection of innocent people from criminal investigation.
[20]See article 33 of the Code of Criminal Procedure, 1996.
[21]See article 96 of the Code of Criminal Procedure of 1996.
[22]Article 135 of China's Constitution stipulates: "the people's courts, people's procuratorates and public security organs shall divide their responsibilities, cooperate with each other and restrict each other in handling criminal cases, so as to ensure the accurate and effective implementation of the law." Such a constitutional system determines that "the biggest feature of China's criminal trial procedure in the litigation structure is that the public security organs and procuratorial organs dominate the entire pre-trial litigation activities, and neutral judicial institutions have no right to participate in pre-trial activities, and it is difficult to implement simultaneous judicial review and control of pre-trial prosecution activities; public security organs and procuratorial organs independently engage in investigation activities in accordance with the statutory division of jurisdiction, the initiation, operation and termination of the prosecution proceedings are essentially independent of the decision." See Chen Ruihua, Frontier Issues in Criminal Procedure, Renmin University of China Press, 2005, p. 499, 500.
[23]See articles 33, 34, 36 and 37 of the Code of Criminal Procedure of 1996.
[24]See articles 56, 187 and 192 of the current Code of Criminal Procedure.
[25]Article 223 of the current Criminal Procedure Law stipulates that "the parties object to the facts and evidence found in the judgment of first instance, and the court of second instance considers that the appeal cases may affect the conviction and sentencing; the appeal cases in which the defendant is sentenced to death" shall be heard in court. This expands the scope of trial cases to many degrees. In addition, in practice, most of the reasons for appeal are the determination of facts and the adoption of evidence. After the implementation of the new law, the number of cases heard in the second instance will inevitably increase greatly. This also means that the modern criminal procedure structure will be established in most of the appeal cases, so that the second instance procedure is more in line with the benign interaction pattern of "separation of prosecution and trial, equal confrontation between prosecution and defense, and trial neutrality", thus promoting the modernization of the overall structure of the trial procedure.
[26]This means that in the death penalty review procedure, the accused can only defend himself and cannot obtain the help of a defense lawyer.
[27]In addition to arrest, other coercive measures against persons and objects are decided by the investigative organs themselves and belong to the unilateral procedural structure; even if it is the so-called two-party procedural structure of examination and approval of arrest and examination and prosecution, there is no legal way for defense lawyers to intervene.
[28]Of course, the antagonism here refers to the confrontation between the defense lawyer and the prosecution, because under the perspective of modern procedural law, the confrontation between the accused and the prosecution can only be guaranteed with the help of the defense lawyer.
[29]Article 14 of the 1996 Criminal Procedure Law stipulates: "The people's courts, people's procuratorates, and public security organs shall protect the litigation rights enjoyed by litigation participants in accordance with the law." The current Criminal Procedure Law is amended to read: "The people's courts, people's procuratorates, and public security organs shall protect suspects., Defendants and other litigation rights enjoyed by the defendant and other litigation rights in accordance with the law."
[30]The current Criminal Procedure Law includes "respect and protection of human rights" in the tasks of the Criminal Procedure Law, see Article 2 of the current Criminal Procedure Law.
[31]The reason for the "comprehensive" expansion is that the amendment of the current criminal procedure law expands the right of defense from the three dimensions of "covering the litigation stage", "defense form" and "defense power. In this regard, this part will discuss the expansion of the right of defense to strengthen the protection of human rights in criminal proceedings from these three aspects, but the focus of the discussion focuses on the expansion of the right of defense to enhance the protection of human rights, and focuses on the expansion of conditional rights and security rights.
[32]Article 35 of the Criminal Procedure Law of 1996 stipulates: "The responsibility of the defender is to provide materials and opinions that prove the innocence of the criminal suspect or defendant, the minor crime, or the mitigation or exemption of criminal responsibility based on the facts and the law, and to safeguard the criminal suspect, The legitimate rights and interests of the defendant." Article 35 of the current criminal procedure law stipulates: "the responsibility of the defender is to put forward materials and opinions on the innocence, minor crime or mitigation or exemption of criminal responsibility of criminal suspects and defendants in accordance with the facts and laws, so as to safeguard the litigation rights and other legitimate rights and interests of criminal suspects and defendants. Revising legitimate rights and interests to "litigation rights and other legitimate rights and interests" is essentially a defense pattern with equal emphasis on entities and procedures.
[33]There are three main views: first, defense lawyers do not have the right to investigate and collect evidence in the investigation process; second, defense lawyers have the right to investigate and collect evidence in the investigation process; third, defense lawyers have the right to investigate and collect evidence in the investigation stage, but the scope of evidence collection should be limited. See the understanding and implementation of the new "criminal procedure law" -- a summary of the 2012 annual meeting of the China criminal procedure law research association.
[34]The right of lawyers to investigate and collect evidence under article 37 of the original Code of Criminal Procedure is a right granted to defense lawyers, I .e. only defense lawyers can enjoy the right to investigate and collect evidence under article 37, and if they are not defense lawyers, they do not have this litigation right. According to the definition of defense lawyers in the Criminal procedure Law, public prosecution cases can only be hired by criminal suspects from the time they are transferred for examination and prosecution, that is to say, in the investigation stage, the lawyer hired by the criminal suspect is not a defender, and of course there is no right to investigate and collect evidence. See: Ji Xiangde: The Fate of the Development of China's Criminal Defense System, in Northern Law, No. 2, 2007.
[35]Under the dual social structure of a single state to citizens, the state has absolute authority, and a single citizen as an individual does not have the strength and status to dialogue with the state, and the interest mechanism formed is actually biased towards the strong group of the state. therefore, the rules bred under such structural conditions are bound to be difficult to have the characteristics of modern rule of law, such as neutrality, impartiality and universality.
[1]Hu Ming, Huang Pei. Legal Research Methodology and the Modernization of Criminal Procedure: A Case Study of Legal Economics Research Methodology [J]. Political Science and Law Forum, 2007, 5.
[2]The Modernization of Criminal Procedure System in China [J]. Journal of Wuhan University (Philosophy and Social Sciences), 2010, 7.
[3] Wu Hongyao. Criminal Procedure in the Perspective of Modern Law [J]. Political and Legal Forum, 2007, 2.
[4] Shouichi Taguchi. Criminal Procedure Law [M]. Translated by Liu Di et al. Beijing: Law Press, 2000: 16-17.
[5] Song Yinghui. Convergence in Criminal Procedure Reform of Two Legal System Countries [J]. People's Procuratorate, 2010, 11.
[6] Hao Yinzhong. Criticism and Construction of the Dual Teleology of Criminal Procedure [J]. Legal and Commercial Studies, 2005, 5.
[7] Wang Jiancheng. Conflict and Balance: A New Perspective of Criminal Procedure Theory [M]. Beijing: Peking University Press,
2006: 113。
[8][9] Zuo Weimin, Wan Yi. Research on Some Basic Theoretical Issues of China's Criminal Procedure System Reform [J]. Chinese Law, 2003, 4.
[10] Xie Youping. On the Evolution of Criminal Defense System [J]. Legal Science, 2002, 1.
[11] Xiong Qiuhong. Criminal Defense System refers to the analysis of the value of litigation [J]. Legal Research, 1997, 6.
[12] Gu Yongzhong. From Defense in Trial to Defense in Investigation [J]. In the Third China Lawyers Forum (Practice Volume).
[13] Song Yinghui, Wu Hongyao. Research on Criminal Pretrial Procedure [M]. Beijing: China University of Political Science and Law Press, 2002: 371.
[14] Lord Denning. Due Process of Law [M]. Translated by Liu Yongan et al. Beijing: Law Press, 1999: 36.
[15] [16] Zhu Tonghui. The Expansion of the Right to Defense and the Independent Value of Investigative Defense [J]. Chinese Journal of Criminal Law, 2009, 12.
[17] [19] [34] Ji Xiangde. Criminal Defense Access System and Effective Defense and Universal Defense [J]. Tsinghua Law Science, 2012, 4.
[18] Xiong Qiuhong. On Criminal Defense [J]. Beijing: Law Press, 1998, 213.
[20] Wang Haiyan. The Evolution of Criminal Procedure Mode [M]. Beijing: China People's Public Security University Press, 2004: 424.
Zuo Weimin. Chinese Road and Global Value: Thirty Years of Criminal Procedure System [J]. Law Science, 2009, 4.
[22] [25] Zuo Weimin. Judicialization: Current and Future Trend of Criminal Procedure Amendment in China [J]. Journal of Sichuan University (Philosophy and Social Sciences), 2012, 1.
[23] Guan Yu. Analysis of the Necessity of Lawyers' Right to Defense in Pretrial Procedure [J]. Political and Legal Forum, 2010, 1.
[24] Alan Dershowitz. The Best Defense [M]. Translated by Tang Jiaodong. Beijing: Law Press, 1994, 259.
[26] Song Yinghui. Principles of Criminal Procedure [M]. Beijing: Law Press, 2007:38.
[27] Chen Weidong. Understanding and Application of Amendments to the Criminal Procedure Law in 2012 [M]. Beijing: China Legal Publishing House, 2012: 26.
[28] Xiong Qiuhong. The Normative System of Criminal Defense and Its Operating Environment [J]. Political and Legal Forum, 2012, 5.
[29] Gu Yongzhong. The important development, progress and implementation of China's criminal defense system [J]. Law Journal, 2012, 6.
[30] Ji Xiangde. On the Value Orientation of Human Rights Protection in the New Criminal Procedure Law [J]. China Justice, 2012, 7.
[31] Ehrlich. Principles of Sociology of Law [M]. Translated by Shu Guoying. Beijing: China Encyclopedia Press, 2009: Preface.
[32] Ji Xiangde. Interpretation of the Latest Criminal Procedure Law [M]. Beijing: China University of Political Science and Law Press, 2012: Preface.
[33] Fan Chongyi. 2012 Criminal Procedure Law: Interpretation and Application [M]. Beijing: Law Press, 2012: Preface.
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