With the full implementation of the Code of Criminal Procedure, the application of the rules of the exclusion of the illegal evidences is more inclined to the protection of the human rights. However, in the process of...With the full implementation of the Code of Criminal Procedure, the application of the rules of the exclusion of the illegal evidences is more inclined to the protection of the human rights. However, in the process of the implementation of the new laws, the problems in view of the rules of the exclusion of the illegal evidences are also prominent, which are mainly reflected in the ambiguity of the scope of the application, the start of the program of the exclusion, and the formalization the trial certificates and other aspects. Therefore, in this article, the author starts from the concept of the illegal evidences, and expounds the principles of the exclusion and the abilities of the evidences, and especially explores the abilities of the evidences and the probative forces. From the differences between the two, the author strictly proves the virtualization of the standards, in order to provide the positive solutions for strengthening the exclusionary procedure of the illegal evidences.展开更多
This article presents attempts to make a comprehensive study of＂special knowledge＂ and to determine its role in the criminal process and criminology nowadays. The concept of special knowledge and its borders, especi...This article presents attempts to make a comprehensive study of＂special knowledge＂ and to determine its role in the criminal process and criminology nowadays. The concept of special knowledge and its borders, especially the use of its various forms are analyzed. The author considers some controversial provisions in the demarcation of expertise special knowledge from other knowledge （including legal）, and establishes their relationship. The provision for the need to establish certain ＂unification＂ in the use of specialized knowledge, as well as in the appointment and conducting forensic examinations, inviting experts, obtaining advice is made. This also applies to the aspirations of uniform methods, expertise techniques and technology in the application of special knowledge. The use of examination in criminal justice in Ukraine is analyzed and some of the changes associated with the adoption of the new Criminal Procedure Code are considered. The changes in procedures are associated with the desire to transform the traditional regulations and to move to the adversarial criminal process. The necessity of equal procedural opportunities in the use of special knowledge by the prosecution and the defense is argued.展开更多
From the perspective of legal norms, the legal attributes of forensic testimony in the course of criminal proceedings are manifested in two forms： one is the collection of evidence; the other is the exercise of power...From the perspective of legal norms, the legal attributes of forensic testimony in the course of criminal proceedings are manifested in two forms： one is the collection of evidence; the other is the exercise of power. However, the values residing in these two legal attributes are not the same. The former emphasizes ＂justice,＂ and the latter, ＂efficiency.＂ An analysis of the legal norms governing forensic testimony in different periods shows that forensic testimony in criminal proceedings is gradually shifting from a pattern dominated by the exercise of power to one characterized by the collection of evidence. However, a genuine return to the essential character of forensic testimony as the collection of evidence must be premised on a change in the value orientation of the Criminal Procedure Law, that is, on a change from ＂efficiency＂ to ＂justice.＂展开更多
Since the enactment of China＇s Criminal Procedure Law in 1979, China＇s criminal procedure system has undergone a process of refinement and elaboration. A relatively complete framework for the criminal procedure syst...Since the enactment of China＇s Criminal Procedure Law in 1979, China＇s criminal procedure system has undergone a process of refinement and elaboration. A relatively complete framework for the criminal procedure system has been constructed that fits in well with contemporary international thinking on criminal procedure. The Decision on Amending the Criminal Procedure Law of the People＇s Republic of China passed by the National People＇s Congress on March 14, 2012 highlights China＇s strenuous efforts in protecting human rights and promoting the modernization of the legal system. It also demonstrates the consolidation and absorption of the achievements of China＇s continuing reforms. A review of the main content of the Amendment to Criminal Procedure Law is highly significant for the further improvement of the system.展开更多
With the adoption of the governance policy of a harmonious society and with the further strengthening of the criminal policy of mitigating severity with leniency, China＇s criminal reconciliation system is undergoing ...With the adoption of the governance policy of a harmonious society and with the further strengthening of the criminal policy of mitigating severity with leniency, China＇s criminal reconciliation system is undergoing rapid development. In the 2012 Criminal Procedure Law of the People＇s Republic of China, criminal reconciliation is stipulated in a separate chapter under ＂Special Procedures,＂ thereby comprehensively establishing for the first time a criminal reconciliation system with Chinese characteristics in the Criminal Procedure Law. However, China＇s legislation on criminal reconciliation remains relatively broad-brush and controversial. Improved regulation and system construction now point the way for future development.展开更多
China＇s Amendment to the Criminal Procedure Law of 2012 revises the provisions on rules of evidence. There are a number of positive changes compared to the original text, but some shortcomings still exist. For instan...China＇s Amendment to the Criminal Procedure Law of 2012 revises the provisions on rules of evidence. There are a number of positive changes compared to the original text, but some shortcomings still exist. For instance, although the legislation recognizes the right against compulsory self-incrimination, it does not acknowledge the right to silence and retains the obligation of the accused to confess; the amended provisions are more tolerant of the use of illegal tactics like ＂threats,＂ ＂enticement＂ and ＂deceit＂ to obtain confessions; the legislative approach does not resolutely deter unlawful search and seizure in the collection of evidence; and although there are provisions for protection of persona/safety, financial compensation and judicial sanctions to ensure that witnesses appear before court to testify, there are no provisions on the most important rule in the evidence system, the hearsay rule.展开更多
Technical investigation is a special means of investigation among criminal procedures. It has the highest risk parameter. Its legislative model as well as its operation in practice is closely related to the developmen...Technical investigation is a special means of investigation among criminal procedures. It has the highest risk parameter. Its legislative model as well as its operation in practice is closely related to the development of science and technology, the public security situation, the state of criminal offences, human rights protection, and related issues. If technical investigation is to strike a balance between crime control and human rights protection in the course of realizing the objectives of criminal procedure, we need to regulate its applicable principles, decision-making mechanisms, implementation mechanisms and remedies in accordance with law.展开更多
文摘With the full implementation of the Code of Criminal Procedure, the application of the rules of the exclusion of the illegal evidences is more inclined to the protection of the human rights. However, in the process of the implementation of the new laws, the problems in view of the rules of the exclusion of the illegal evidences are also prominent, which are mainly reflected in the ambiguity of the scope of the application, the start of the program of the exclusion, and the formalization the trial certificates and other aspects. Therefore, in this article, the author starts from the concept of the illegal evidences, and expounds the principles of the exclusion and the abilities of the evidences, and especially explores the abilities of the evidences and the probative forces. From the differences between the two, the author strictly proves the virtualization of the standards, in order to provide the positive solutions for strengthening the exclusionary procedure of the illegal evidences.
文摘This article presents attempts to make a comprehensive study of＂special knowledge＂ and to determine its role in the criminal process and criminology nowadays. The concept of special knowledge and its borders, especially the use of its various forms are analyzed. The author considers some controversial provisions in the demarcation of expertise special knowledge from other knowledge （including legal）, and establishes their relationship. The provision for the need to establish certain ＂unification＂ in the use of specialized knowledge, as well as in the appointment and conducting forensic examinations, inviting experts, obtaining advice is made. This also applies to the aspirations of uniform methods, expertise techniques and technology in the application of special knowledge. The use of examination in criminal justice in Ukraine is analyzed and some of the changes associated with the adoption of the new Criminal Procedure Code are considered. The changes in procedures are associated with the desire to transform the traditional regulations and to move to the adversarial criminal process. The necessity of equal procedural opportunities in the use of special knowledge by the prosecution and the defense is argued.
基金the Youth Project of the National Social Sciences Foundation"Linking Securies Administrative Punishment with Criminal Penalty"(No.11CFX048)support from the Project of the Institute of Foreign Law and Comparetive Law of East China University of Political Science and Law(No.SJ0709)the Disciplinary Building Project of Legal History of East China University of Political Science and Law(No.030102)
文摘From the perspective of legal norms, the legal attributes of forensic testimony in the course of criminal proceedings are manifested in two forms： one is the collection of evidence; the other is the exercise of power. However, the values residing in these two legal attributes are not the same. The former emphasizes ＂justice,＂ and the latter, ＂efficiency.＂ An analysis of the legal norms governing forensic testimony in different periods shows that forensic testimony in criminal proceedings is gradually shifting from a pattern dominated by the exercise of power to one characterized by the collection of evidence. However, a genuine return to the essential character of forensic testimony as the collection of evidence must be premised on a change in the value orientation of the Criminal Procedure Law, that is, on a change from ＂efficiency＂ to ＂justice.＂
文摘Since the enactment of China＇s Criminal Procedure Law in 1979, China＇s criminal procedure system has undergone a process of refinement and elaboration. A relatively complete framework for the criminal procedure system has been constructed that fits in well with contemporary international thinking on criminal procedure. The Decision on Amending the Criminal Procedure Law of the People＇s Republic of China passed by the National People＇s Congress on March 14, 2012 highlights China＇s strenuous efforts in protecting human rights and promoting the modernization of the legal system. It also demonstrates the consolidation and absorption of the achievements of China＇s continuing reforms. A review of the main content of the Amendment to Criminal Procedure Law is highly significant for the further improvement of the system.
文摘With the adoption of the governance policy of a harmonious society and with the further strengthening of the criminal policy of mitigating severity with leniency, China＇s criminal reconciliation system is undergoing rapid development. In the 2012 Criminal Procedure Law of the People＇s Republic of China, criminal reconciliation is stipulated in a separate chapter under ＂Special Procedures,＂ thereby comprehensively establishing for the first time a criminal reconciliation system with Chinese characteristics in the Criminal Procedure Law. However, China＇s legislation on criminal reconciliation remains relatively broad-brush and controversial. Improved regulation and system construction now point the way for future development.
文摘China＇s Amendment to the Criminal Procedure Law of 2012 revises the provisions on rules of evidence. There are a number of positive changes compared to the original text, but some shortcomings still exist. For instance, although the legislation recognizes the right against compulsory self-incrimination, it does not acknowledge the right to silence and retains the obligation of the accused to confess; the amended provisions are more tolerant of the use of illegal tactics like ＂threats,＂ ＂enticement＂ and ＂deceit＂ to obtain confessions; the legislative approach does not resolutely deter unlawful search and seizure in the collection of evidence; and although there are provisions for protection of persona/safety, financial compensation and judicial sanctions to ensure that witnesses appear before court to testify, there are no provisions on the most important rule in the evidence system, the hearsay rule.
文摘Technical investigation is a special means of investigation among criminal procedures. It has the highest risk parameter. Its legislative model as well as its operation in practice is closely related to the development of science and technology, the public security situation, the state of criminal offences, human rights protection, and related issues. If technical investigation is to strike a balance between crime control and human rights protection in the course of realizing the objectives of criminal procedure, we need to regulate its applicable principles, decision-making mechanisms, implementation mechanisms and remedies in accordance with law.
