Keywords: criminal procedure structure; Criminal procedure mode; The relationship between criminal procedure structure and criminal procedure mode. : 139 16
Document ID: a
Article number:1008-7575 (2009) 04-0048-05
On the basis of studying the current crime analysis theory of Japanese criminal procedure structure, the author thinks that "the criminal procedure system is a powerful analytical tool with important methodological significance, and the litigation structure is determined by a certain form of litigation purpose. Many major scholars have used the control theory embodied in the basic litigation methods in the two criminal procedure and evidence rules as the theoretical basis for their analysis." However, due to the legal status and tripartite relationship of litigation, defense and judgment, Chinese scholars. "L3 1 is a viewing habit, which is not paid enough attention to, and the two concepts are often confused. Once put forward, it has had a wide influence in academic circles, gradually causing conceptual confusion, and the understanding of criminal litigation has also become a general definition of "criminal litigation structure" in theory in China.
Obstruct From the origin of the theory of criminal procedure structure and the theory of criminal procedure mode, in the early 1990s, "structural analysis" or "pattern analysis according to origin, concept connotation, classification and use context" became a basic theoretical category of China's procedural law, and the research on the litigation structure and criminal procedure mode were two different but closely related methods. However, it is necessary to sort out and clarify the different theories that define the general system of criminal procedure structure from this general theory.
In reading, we can also find that this definition overemphasizes the horizontal aspects of the structure, origin, concept and basic theory of criminal procedure, while ignoring its vertical aspects. type
In addition to paying attention to the three aspects of prosecution, defense and trial in the horizontal direction of criminal proceedings,
(A) the origin and concept of criminal procedure structure
Legal relationship, attaching importance to the "structure" or "construction" of litigation subject procedures such as investigation, prosecution and trial, comes from Latin Strictura, which means that in addition to the characteristics of things, we must also focus on the regular relationship between police and procuratorial organs. L 1 1 no problem
On the relationship between customs and courts. To sum up, the definition of H 1 criminal procedure structure can be put forward by Japanese scholar Ito Tian Kan and others.
Defined as: the structure of criminal proceedings is determined by a certain form of litigation purpose. It is believed that in criminal proceedings, in order to achieve their respective litigation purposes, based on the basic litigation purposes in the main litigation procedures and evidence rules, the legal status of the prosecution, the defense and the three-party litigation must be carried out on the basis of the basic litigation legal relationship, which is the structure of criminal proceedings. Professor Taguchi Shouyi, a scholar of Japanese relations and the interrelationship among public security organs, procuratorial organs and courts, believes: "In order to realize the status and relationship of criminal procedure law.
Yes, what kind of litigation structure should the criminal procedure law have as a whole? (2) The basic theoretical types of criminal procedure structure.
And then what? This is the structural theory of criminal procedure law. The focus of the study is the microscopic combination of elements of criminal procedure. Whether it is substantive realism, punishment or due process, the structure of criminal procedure can be divided into different types to solve cases from different angles. The choice of the above questions leads to the difference of program structure. Type. Scholars in China, after research, have different ways of constructing criminal procedure, that is, the theory of criminal procedure law, which is determined by its purpose. "[2 1] China's comparison has been classified, forming several influential theories.
The scholar who defined the structure of criminal procedure earlier is Li Xinjian, who works in the department.
1. The litigation structure theory of horizontal structure and vertical structure. some
About the author: Yang (1983- 1), male, from Tonghua, Jilin, with a master's degree in law from Weihai Branch of Shandong University, mainly engaged in criminal procedure law research.