Explore Due Process: A Comparative Study on Criminal Procedure Law Monographs

Author: Sun Changyong
Publisher:
Publish Date: 2005-11-01
Features: What is the relationship between criminal procedure and the constitution? From the perspective of contemporary Western legal theory, this seems to be an obvious question. In Germany, criminal procedure is regarded as a "seismograph of the constitution"; in the United States, criminal procedure has been largely constitutionalized to the extent that courses on criminal procedure in law schools are often referred to as "Constitutional Criminal Procedure," meaning constitutional criminal procedure. Law schools with better conditions even offer separate courses on constitutional issues in certain aspects of criminal procedure, such as "Constitutional Restraints on Criminal Law Enforcement" (Constitutional Regulation of Criminal Law Enforcement). However, in China, regarding the relationship between criminal procedure and the constitution, academia has long been stuck in the interpretive study of Article 1 of the "Criminal Procedure Law," simply citing a few constitutional provisions as the "basis for drafting the Criminal Procedure Law" and extracting a few provisions from the "Criminal Procedure Law" as the "manifestation" of constitutional authority. Especially in various "uniformly compiled textbooks" aimed at undergraduate students, there is no creative interpretation on this issue. In recent years, with the continuous expansion of exchanges and the significant improvement of the academic atmosphere, some young scholars have begun to explore this issue to some extent, proposing some thought-provoking questions, which is a very encouraging phenomenon, reflecting the gradual deepening of academic research. Of course, "constitutionalism" and "constitution" are different. A "Criminal Procedure Law" drafted based on a "constitution" does not necessarily guarantee the implementation of the rule of law in criminal procedure carried out under the application of this law, because having a constitution does not mean having constitutionalism. What is constitutionalism? Constitutional scholars have multiple interpretations, but I tend to agree with Professor Li Buyun's explanation, which is "constitutionalism is a political system in which a country governs based on a constitution that fully reflects modern civilization, with the main content of achieving a series of democratic principles and systems, with the strict implementation of the rule of law as the basic guarantee, and with the full realization of extensive human rights as the purpose" (Li Buyun: "Towards the Rule of Law," Hunan People's Publishing House, 1998 edition, p. 2). If a country's constitution does not take popular sovereignty as its fundamental content, does not aim to protect the human rights of every individual, or does not guarantee the rule of law through the principle of judicial independence, then the constitution in its textual sense and constitutionalism in its institutional sense cannot truly form the basis of the rule of law for modern criminal procedure. This book mainly introduces the structure of investigative procedures, the burden of proof in criminal procedure, the evidence disclosure system in criminal procedure, and other content.