Second, establish procedural rules and procedural judgments.
(a) the meaning of procedural rules and procedural rulings
Procedural rules are the premise of procedural adjudication. Procedural rules are relative to substantive rules, both of which belong to the category of legal rules, so they must conform to the general logical composition of legal rules. Logically speaking, every legal rule should consist of two parts: behavior and legal consequences. [1] Behavior pattern is a theoretical abstraction and a basic framework or standard of behavior summarized from a large number of actual behaviors. Behavior patterns can be roughly divided into three categories: they can be expressed like this; It should behave like this; This should not be done; These three behavior patterns also mean that there are three corresponding legal rules: the legal rules of authorization; Mandatory legal rules; Prohibitive legal rules. Legal consequences generally refer to certain results given by law to acts with legal significance. It can be roughly divided into two categories: (1) positive legal consequences, that is, the law recognizes that this behavior is legal and effective, and protects and even rewards it. (2) Negative legal consequences, that is, the law does not recognize, revoke or even sanction. [2] Procedural rules are legal rules composed of procedural rights, obligations (behavioral patterns in procedural law) and procedural legal consequences. Specific to the rules of criminal procedure, it is the legal rules that stipulate the operating rules that the public, procuratorial and legal organs and litigation participants should abide by when they participate in criminal proceedings and the legal consequences incurred by violating the operating rules. Take the article 19 1 of the Criminal Procedure Law as an example: "The original judgment should be revoked and sent back to the people's court that tried the case for retrial", which is the isomorphism between the behavior pattern of negative legal procedure and the legal consequences of procedure, forming a complete procedural rule. [4]
Procedural judgment is a kind of court judgment. The so-called "referee" is the act of using public power to solve the defendant's case. The word "referee" has many meanings. In the broadest sense, the referee refers to all litigation procedures, that is, the referee used in the sense of litigation itself. However, the judgment in the inherent sense of procedural law is a litigation act of judicial organs' will expression. But the judgment in this sense, in a narrow sense, only refers to the judicial organs using public power to solve the defendant's case and applying the law to the case (such as guilty or innocent judgment). In a broad sense, judgment refers to the legal acts of the court in litigation (such as the judgment of applying for withdrawal, the judgment of investigating evidence, etc.). In procedural law, the word referee generally refers to the referee in a broad sense. [5] From the above analysis, it can be seen that the narrow judgment only refers to the substantive judgment of the court, while the broad judgment includes substantive judgment and procedural judgment. Procedural judgment refers to the legal act that the court applies procedural legal consequences to litigation according to procedural rules. For example, if the court of second instance finds that the trial of the court of first instance violates legal procedures, it will make a ruling to revoke the original judgment and send it back to the people's court that originally tried it for retrial.
(B) the significance of establishing a procedural judgment
The establishment of procedural judgment has important theoretical and practical significance;
First of all, the establishment of procedural judgment fully embodies the independent value of procedure and realizes the transformation of criminal procedure from instrumental value to pluralistic value, especially to procedural standard. China's long-standing legal tradition of "valuing entity over procedure", "valuing result over process", "valuing attack over protection" and "valuing state over individual" is the concentrated expression of instrumentalism. On the one hand, under the influence of instrumentalism, procedural rules are regarded as dispensable things, legislators do not attach importance to the design of procedural rules, and a large number of procedural rules lack the provisions of legal consequences, leading to fatal logical defects; On the other hand, the existence of the defect of procedural rules will inevitably lead to the invalidation of procedural guarantee, let alone procedural judgment. The "lack of self-respect" of procedural law has contributed to the formation and strengthening of the concept of "emphasizing entity over procedure" The perfection of procedural rules (adding the provisions on the consequences of illegal procedures) and the establishment of procedural judgment make the independent value of procedures appear. As Professor Chen Ruihua pointed out, people's evaluation of whether a criminal procedure is "good" depends on whether the criminal procedure has an independent internal excellent quality, which exists independently of the correctness of the judgment conclusion and is fully reflected in the design and operation of the criminal procedure itself. [6] Chinese scholars also pointed out: "Independent procedural value and taste are an important part of modern civilization and modern rule of law", "The revision of China's 1996 Criminal Procedure Law is progressive, scientific and democratic. It is through the independent value of criminal proceedings that it can be reflected ... especially the provision in Article 19 1 of the Criminal Procedure Law that "if the people's court of second instance finds that the trial of the people's court of first instance violates one of the following legal procedures, it shall make a ruling to revoke the original judgment and send it back to the people's court that originally tried it for retrial", which fully embodies the independent value of the procedure. Therefore, it marks the legalization, democratization and civilization of China's litigation system. " [7]
Secondly, the establishment of procedural judgment effectively protects the procedural rights and constitutional rights of the defendant, which is a leap in the field of human rights protection in criminal procedure law. The purpose of modern criminal procedure has changed from the single purpose of "cracking down on crimes and discovering real entities" to the multiple purposes of "legal truth" and "human rights protection", especially the purpose of human rights protection, which fully embodies the characteristics of modern criminal procedure and the difference between democracy and autocracy. From the perspective of "human rights protection", the rules of criminal procedure are a means to give the defendant procedural rights and reasonably limit the state's prosecution behavior. Therefore, a Japanese scholar, Sukeyoshi Taguchi, pointed out that "to determine whether a certain procedure is due process, it depends on the degree to which the procedure attaches importance to the protection of human rights". Therefore, human rights protection can be compared with due process. "[8] Most of the criminal procedure laws in contemporary countries provide procedural rules for the protection of human rights, such as the presumption of innocence and the exclusion of illegal evidence. China's criminal procedure law also has similar provisions, such as "the people's courts shall hear cases in public unless otherwise provided for in this law." "The defendant has the right to be defended, and the people's court has the obligation to ensure that the defendant is defended." "It is strictly forbidden to extort confessions by torture and collect evidence by threats, enticements, deception and other illegal methods." Wait a minute. Literally, there are many provisions on "human rights protection" in China's criminal procedure law, but for a long time, most of these provisions have not stipulated the corresponding "procedural legal consequences", thus lacking the basic elements of the rules, making the original procedural rules become "declarations" or "slogans" and unable to become the basis for procedural judgments, thus achieving little effect in practice and extorting confessions by torture repeatedly. 1996 After the revision of the Criminal Procedure Law, Article 19 1 clearly stipulates that violation of the provisions of this law on public trial and violation of the challenge system; The procedural legal consequences of depriving or restricting the legitimate litigation rights of the parties, so as to improve the relevant procedural rules, establish a procedural adjudication mechanism, and realize the goal of protecting human rights through litigation procedures in practice. However, there are still many procedural "rules" in China's criminal procedure law that lack corresponding "procedural legal consequences", so the application scope and effectiveness of the current procedural judgment are limited and need to be further improved through legislation.
Thirdly, the limitations of procedural adjudication in China's criminal procedure law.
As can be seen from the above discussion, China's criminal procedure law has initially established the procedural adjudication mechanism in China's criminal procedure through the provisions of Article 19 1, which is "a highlight of the revision of China's criminal procedure law". However, no matter from the article 19 1 itself or from the overall reflection on the procedural adjudication mechanism in China's criminal procedure law, I think it still exists.
(1) Avoiding the heavy and avoiding the light is limited to the self-discipline within the court system.
Looking at China's current criminal procedure law, there are still a lot of procedural "rules" that lack "procedural legal consequences", especially for procedural violations of public and procuratorial organs. For example, although the Criminal Procedure Law "prohibits extorting confessions by torture and collecting evidence by threatening, luring or cheating", it does not stipulate the procedural illegal consequences. Undeniably, there are already provisions on related crimes in China's criminal law, such as the crime of extorting a confession by torture, the crime of obstructing testimony, the crime of helping to destroy and falsifying evidence. However, these "substantive legal consequences" are only aimed at "people" who violate the procedural rules, and they do not directly deny "illegal acts" and "fruits of illegal acts", so it is inevitable that there will be a feeling of scratching their feet and being incoherent. This phenomenon has aroused the reflection of academic circles. For example, Wang Minyuan, a scholar in China, pointed out: "Extorting confessions by torture is obviously a typical violation of procedural law. Although the law stipulates that the act of extorting a confession by torture should be punished in the sense of substantive law, even if the actor bears the legal responsibility in the substantive law, there is no legal consequence that the evidence obtained by extorting a confession by torture cannot be accepted in the procedural law, which will lead to the denial of the act of extorting a confession by torture in the substantive law, but the evidence obtained will be recognized in the procedural sense. This situation is of course ridiculous, but without legal consequences in the sense of procedural law, it will become a reality. " [9] Professor Chen Ruihua also pointed out that "although in a judicial interpretation, the Supreme People's Court also requires courts at all levels to exclude the evidence provided by extorting a confession by torture from the basis of finalization [10], this judicial interpretation itself does not have strong legal effect, so it is difficult to be operational. Courts at all levels really do not ask much. " [ 1 1]
After the revision of the Criminal Procedure Law, from the adjustment scope of Article 19 1, it is only limited to the procedural review of the court of first instance by the court of second instance, which is a procedural self-restraint within the court system. In fact, compared with public security organs and procuratorial organs, the court is a "unprofitable" judicial organ, and its neutral position makes it lack the impulse to violate the procedure, so it is easier to perform the procedural rules of the trial legally and fairly. In practice, the violation of procedural law by judges is much lighter than the violation of procedural law by public and procuratorial organs mentioned above. Therefore, although the amendment to 19 1 has taken the first step in the procedural judgment of criminal proceedings in China, it has not solved the most critical and serious problems in criminal proceedings in China, and it is quite suspected of evading the important and neglecting the important. At present, due to the lack of "procedural legal consequences" in the above-mentioned procedural "rules", procedural adjudication lacks the necessary basis, and court trials are mostly limited to substantive adjudication, which deviates from the proper meaning of "adjudication". The values of "procedural justice" and "human rights protection" are drowned in the enthusiasm of "fighting crime and pursuing objective truth", and the procedural violation of public and procuratorial organs has become a stubborn disease that plagues criminal justice.
(2) The procedure is retrograde, and the defendant suffers from "double danger";
The principle of "ne bis in idem" is a basic principle of criminal procedure in common law system [12]. According to this principle, the defendant may not be prosecuted, tried and punished twice for the same crime. For example, Article 5 of the Federal Constitution of the United States stipulates: "No one shall be threatened by life and body twice for the same crime". The Supreme Court of the United States has made a series of precedents, which stipulated the scope of application of the principle of non-double jeopardy. First, if the defendant is acquitted by the court, the prosecutor has no right to appeal against the defendant even if the court made some legal mistakes in the trial or the indictment has some defects. Second, if the defendant convicted by the court appeals, the higher court can give him a second trial. However, if the defendant's guilty verdict is upheld in the new trial, the judge shall generally not impose a heavier penalty on the defendant. Third, if a lawsuit is rejected by the court because of insufficient evidence before the final judgment (equivalent to acquittal), the defendant cannot be tried for a second time, and so on. [13] The principle of "ne bis in idem" in Anglo-American law system is obviously broader in scope of application than the theory of "RES judicata" in continental law system, which is only applicable to judgments that have already taken effect, while the former is not limited to this. In federal courts, once the jury is sworn in, the first danger has already been constituted. In the local court, the first witness appears in court, which means the first danger is established. At this time, once the prosecution is withdrawn, it is not allowed to re-prosecute, otherwise it will make the defendant "suffer double danger." Of course, there are exceptions to the principle of "ne bis in idem", but it is often an exception in favor of the defendant. [ 14]
The legitimacy of the principle of "one thing is no longer reasonable" mainly lies in its humanistic concern for the parties. If "the judicial adjudication procedure is run in reverse at will, the litigants may be dragged down by the lawsuit again and again, and their interests and fate will be in an uncertain and unresolved state for a long time." "And this will not be fair to the parties in a weak position" [15], and Beccaria also pointed out when demonstrating the timeliness of punishment: "The faster and more timely the penalty for punishing crimes, the more just and beneficial it will be." "It is fair, because it reduces the useless and cruel torture that uncertainty brings to prisoners." [16] Repeated trials or retrograde procedures will undoubtedly bring the above inhuman consequences.
After the above theoretical elaboration, we will examine the criminal proceedings and procedural judgments in China. We will find that there is no principle of "no matter what happens" in China's criminal procedure law, and there is no principle of "no matter what happens". There is only an established principle of "seeking truth from facts and correcting mistakes". The court of second instance in China implements the principle of "comprehensive review", which includes both substantive judgment and legal judgment, and legal judgment includes procedural judgment involved in Article 19 1. As far as the existing procedure is illegal, article 19 1 only stipulates the legal consequences of "ruling to revoke the original judgment and send it back to the people's court that originally tried it for retrial". There is no distinction between whether it is beneficial to the defendant, nor does it limit the number of remands, and there is no provision for making a judgment in favor of the defendant in case of serious violation of procedures and infringement of the defendant's constitutional rights. First of all, it is undeniable that in practice, most of the procedural violations of the court violate the defendant's litigation rights, so remanding for retrial is usually based on reasons that are beneficial to the defendant. But in theory, the opposite possibility is not ruled out, that is, "the court has made some legal mistakes that are unfavorable to the prosecutor in the trial." In this case, there is no reason to send him back for retrial, and the procedure is retrogressive. Secondly, there is no limit to the number of remands. In the absence of an independent detention system in China, the time limit for hearing a case is often the defendant's detention period. In the case of being remanded for retrial many times without ruling to lift the detention, the defendant will "suffer multiple dangers" in the indefinite extension of detention, which does not have the minimum fairness. Finally, apart from the legal consequences of remanding for retrial, there are no more serious or direct legal consequences, such as serious violation of procedures and serious violation of the defendant's basic human rights, dismissal of public prosecution, acquittal, etc. The retrogression of procedure becomes the inevitable consequence of procedural judgment. The author doesn't try to deny the two-instance final review system and remand retrial system in China from the perspective of "avoiding double dangers". Under the premise of the existing judicial framework and judicial quality in China, it is necessary to make the final judgment by two trials. However, regarding the issue of remanding the procedural referee for retrial, I think we should limit and reform from the standpoint of "no double danger" to make the result of procedural referee more scientific and humanized.
Secondly, improve the procedural review mechanism and broaden the scope of procedural adjudication. According to article 19 1, the current procedural judgment in China is limited to the judgment of the court of second instance on the trial procedure of the court of first instance. The real judgment is mainly the judgment of the court on the litigation behavior of both the prosecution and the defense. Therefore, the scope of procedural judgment should be extended to the review of the litigation behavior of both the prosecution and the defense, especially the procuratorial organ, and whether the investigation and prosecution organ violated the legal procedures and infringed the legitimate interests of the defendant in the process of investigation and prosecution. If there are illegal facts, procedural judgments should be enabled and unfavorable procedural legal consequences should be applied. Similarly, in the second trial or retrial stage, this procedural review should also continue. Procedural judgment in court trial is an "ex post review" of investigation and prosecution. With the improvement of human rights protection awareness, the scope of procedural adjudication should also be extended to the pre-trial stage, that is, the "ongoing" procedural review of investigation, review and prosecution, because the process of investigation, review and prosecution involves the confrontation between state public power and citizens' private rights. In this confrontation, a neutral third party should participate in the adjudication process, such as prolonged detention and illegal evidence collection. On the one hand, the public power of the state should be restricted in time to prevent power. This is actually to build a judicial review system in the pre-trial stage and realize the return from the form of administrative prosecution to the form of litigation. [19] According to the existing legal framework in China, the procedural review in the pre-trial stage has not been included in the scope of judicial review by the court, so there is no powerful legal relief for the problems such as excessive pre-trial detention. Moreover, the second paragraph (2) of Article 1 of the Supreme People's Court's Interpretation on Several Issues Concerning the Implementation of the Administrative Procedure Law clearly stipulates that "acts explicitly authorized by public security, national security and other organs in accordance with the Criminal Procedure Law" are not within the scope of judicial review, but apart from the legal effect of this judicial interpretation to be determined, whether "illegal evidence collection" and "extended detention" are implemented under the circumstances explicitly authorized by the Criminal Procedure Law? Therefore, from the perspective of necessity, this judicial interpretation cannot deny the legitimacy of this theoretical assumption. In order to prevent judges from prejudging substantive issues, we should organize special judges or build a pre-trial system to engage in such pre-trial procedural review. Of course, the construction of these systems needs to be further deepened in judicial reform and system reform.
Finally, raise awareness of human rights protection and increase sanctions against procedural violations. The provisions of China's Criminal Procedure Law on the consequences of procedural violations are only "remanded for retrial" in article 19 1, which is too simple and general. As mentioned earlier, it is suspected of violating the principles of "no second trial for one crime" and "accountability". From the perspective of human rights protection, the system of "remanding for retrial" in China's criminal proceedings should be restricted and reformed on the basis of the principles of "no double jeopardy" and "responsibility". First of all, we should distinguish whether "remanding for retrial" is beneficial to the defendant, and strictly limit "remanding for retrial" that is not conducive to the defendant; Secondly, the number of "remand for retrial" should be strictly limited to avoid endless litigation, and the defendant should be ordered to lift the detention in order to prevent improper extension of the detention period; Finally, we should distinguish the degree of program violations. For minor procedural violations, a judgment can be made to correct procedural errors without "remanding for retrial" to avoid the defendant's "double danger". For serious procedural violations and violations of the defendant's human rights, more severe judgments should be made, such as acquittal, so that the offender can bear adverse legal consequences, so as to safeguard procedural justice and protect the defendant's litigation rights and human rights.
The above is the theoretical construction of procedural judgment perfection, and the construction of legal rules needs to be more concrete and operable on the basis of theoretical construction and legislative technology. Limited by the length and theme of the article, I won't go into details here.
"Notes"
[1] Some scholars believe that legal rules consist of three parts: assumption, handling and sanctions. The behavior pattern referred to in this paper is essentially a combination of hypothesis and treatment.
[2] Shen (editor): Jurisprudence, Peking University Publishing House, 1999, p. 37-38.
[3] In China's criminal procedure law, the exclusion of public and procuratorial organs from the concept of "participants in litigation" at least conceptually leads to the inequality of litigation status between the prosecution and the defense, which is the product of "linear litigation structure". Under the "linear structure", the introduction of the trial mode of combining prosecution with defense will face great risks. For a detailed analysis of the "linear structure" and "triangular structure" of criminal proceedings, see Chen Ruihua: Frontier Issues in Criminal Proceedings, China People's Publishing House, 2000, p. 122- 123.
[4] Professor Chen Ruihua of Peking University Law School believes that the procedural rules themselves should also distinguish between "substantive procedural rules" and "pure procedural rules". The former is similar to the procedural rules mentioned in this paper, including the logical structure and legal consequences of behavior patterns, while the latter is an operational procedure designed to implement the former, which should include the burden of proof and the degree of proof of procedural judgments. It should be said that Professor Chen's views put forward higher requirements for the improvement of procedural rules and the establishment of procedural adjudication in China. However, "pure procedural rules" should be based on the premise that "substantive procedural rules" are complete. In China's criminal procedure law, the former still has serious logical defects-most procedural rules only have behavior patterns without legal consequences. Due to the focus of the discussion and the length of the article, this article does not discuss "purely procedural rules".
[5][ Japan] Taguchi Shouyi: Criminal Procedure Law, translated by Darren Liu, Zhang Ling and Jin Mu, revised by Bian Jianlin, Law Press, 2000, p. 282.
[6] Chen Ruihua: "Frontier Issues in Criminal Procedure", China People's Publishing House, 2000, p. 88-89.
[7] Fan Chongyi: "On the change of legal view of criminal procedure", in Political Science and Law Forum 200 1 No.2, No.51page.
[8] Same as Note 5, p. 12.
[9] Wang Minyuan: A Review of Criminal Justice Theory and Practice, China University of Political Science and Law Press, 1999, p. 49.
[10] Article 6 1 of the Supreme People's Court's Interpretation on Several Issues Concerning the Implementation of the Criminal Procedure Law of People's Republic of China (PRC) stipulates. -author's note.
[1 1] Chen Ruihua: Visible Justice, China Legal Publishing House, 2000, p. 190.
[12] The principle of "ne bis in idem" and the theory of res judicata in civil law system are considered as different interpretations of the principle of "ne bis in idem" in ancient times. The theory of RES judicata demonstrates the legitimacy of "one thing is never dealt with again" from the perspective of safeguarding judicial authority, and holds that judicial authority lies in the fact that judges cannot be overthrown frequently. But there is an insurmountable paradox in this argument, that is, the authority of the judiciary cannot be based on fallacies, and "one thing after another" is often based on the need to correct fallacies. If the judiciary wants to show its authority through stability, it must also agree with its own fallacies. "Double Danger" demonstrates the legitimacy of "one thing will not be dealt with again" from the perspective of human rights protection, and holds that it is necessary to avoid leaving a person in an uncertain state for a long time. We believe that it is the development direction of contemporary criminal procedure law to inject the right element as a technical rule into the criminal procedure law and make it a dynamic constitution and human rights protection law, and the humanistic care embodied in the principle of "double danger" just represents this direction.