Frontier Issues in Criminal Procedure

Author: Zeng Xianyi (Editor)
Publisher:
Publish Date: 2000-01-01
Features: Implementing Rule of Law through Programs (Preface)
A Western philosopher once asked his student: Suppose you are faced with two situations: First, a doctor believes you have a severe illness and that amputating your right leg is the only way to save your life. After obtaining your consent, he prepares to perform the amputation. Second, during a voyage, you are hijacked by pirates who demand you hand over someone else's treasures. After you refuse, they prepare to cut off the middle finger of your right hand. If possible, which situation would you choose? Why?
The student pondered for a moment and replied: "I would prefer neither, as I do not want to lose either my right leg or my middle finger." The philosopher analyzed: "Your answer is clever, but you have avoided the question. In fact, choosing the first situation means you lose a leg, but you are treated kindly by the doctor: he values your life and respects your free will, and the ultimate purpose of amputation is to prevent greater misfortune. On the other hand, if you choose the second situation, you suffer a smaller loss—a finger—but the pirates do not take you seriously at all. They neither respect your free will nor consider your interests. The ultimate purpose of cutting a finger is to obtain wealth, and they are willing to sacrifice your rightful rights for it."
The student suddenly realized: "So, the first situation is acceptable."
The above dialogue may sound absurd, but it uniquely illustrates a point: When people's rights are threatened, they not only focus on the actual loss of their interests but also value the way they are treated. In cases where an unfortunate outcome is unavoidable, people may pay more attention to whether they are treated justly and humanely. This issue can be summarized as the relationship between process and result, or procedure and substance.
In legal philosophy, procedure refers to the process of forming a legal decision according to certain steps, sequences, and methods. The state's legislative regulation and adjustment of this process form specialized procedural law. Here, what corresponds to procedure are various legal decisions, such as laws formulated and passed by legislative bodies, administrative penalties imposed by administrative agencies, judicial judgments or rulings made by courts, or even elected leaders or representatives of public opinion. Among these legal decisions, the greatest threat to citizens' rights may come from criminal legal decisions—such as declaring someone a criminal, imposing penalties, and depriving them of their property, freedom, reputation, or even life.
To prevent the abuse of such sentencing and conviction power, the state has formulated and implemented criminal law, ensuring that convictions meet statutory elements and sentencing aligns with statutory penalties and ranges—that is, "no crime without clear legal provision, no penalty without clear legal provision." The principle of criminal law embodies a typical idea of the rule of law: for officials, anything not authorized by law is prohibited; for ordinary citizens, anything not prohibited by law is permitted. Thus, criminal law imposes substantive restrictions on officials' judicial activities.
However, to limit the power of officials, criminal law alone is far from sufficient. Because criminal law is merely a law that regulates crime and punishment, establishing an external boundary for citizens' behavior, it primarily governs the results of officials' judicial activities, not the process. To prevent officials from abusing their power during judicial proceedings, the state has formulated a specialized procedural law—the Code of Criminal Procedure.
What is criminal procedure? To many, it is a state activity aimed at punishing crime, uncovering crime, and proving crime. In other words, criminal procedure is a war launched by the state to control and suppress crime, with the police, procuratorate, and courts as the commanders and all criminals as the targets. But if criminal procedure is viewed as a military war, why does it follow "procedural" requirements rather than military ones?
Any procedure requires a tripartite structure of prosecution, defense, and judgment, with prosecution and judgment having separate roles and not being concentrated in the same institution. Defense must also be strong enough to counterbalance prosecution and constrain judgment. This structural setup contradicts the basic principles and laws of military science. In fact, if criminal procedure is understood from a military war perspective, there would be no need for the police, procuratorate, and courts to be divided in power. They could concentrate their punitive power in a single institution. The Code of Criminal Procedure would also be unnecessary, as any regulation aimed at establishing norms such as jurisdictional division, recusal, defense, arrest conditions, detention terms, or appeal systems would inevitably "tie the hands and feet" of the police, procuratorate, and courts, preventing them from acting arbitrarily against crime and reducing the deterrent and intimidating power of punishment.