A Study on the Right of Criminal Procedure Participants to Consent

Zining Dong

doi:10.62051/dp5cn649

Authors

Zining Dong

DOI:

https://doi.org/10.62051/dp5cn649

Keywords:

Criminal Procedure; Parties; Right to Consent to Procedures.

Abstract

In the context of China’s emphasis on the pursuit of “protecting human rights” in criminal proceedings, the rights of participants at various stages of litigation have been continuously improved. However, there still exist certain deficiencies regarding the establishment of the right to consent to procedures. At the level of values, the establishment of the right of procedural consent for parties is a full embodiment of the freedom to safeguard human rights, supported by specific legal principles. In current legal texts, the right of procedural consent for parties is reflected to some extent in relevant provisions such as expedited procedures and simplified procedures, with different application modes in different scenarios. Addressing the problems existing in the legislation and practice of the right of procedural consent for parties, it is proposed to improve the current setup and application of the right of procedural consent for parties in criminal proceedings.

Downloads

Download data is not yet available.

References

[1] The seven articles in question are articles 43, 217, 222, 227, 285, 294 and 296 of the Criminal Procedure Law. These articles mainly provide for the right of victims to procedural consent in evidence-gathering procedures and the right of defendants in plea bargaining procedures to procedural consent to the application of summary and expedited procedures.

[2] Information on: https://cd.hwxnet.com/view/mdjceepgchlcaobi.html.

[3] See Lingyong Kong, “Definition and Guarantee of Defendants’ Voluntariness in Pleading Guilty and Accepting Punishment: An Analysis Based on the Theory of Defendants’ Consent”, Law and Business Studies, Vol. 36 (2019) No. 3, pp. 63-75.

[4] See Lintao Dong, “On the Consent of the Accused in Plea and Penalty Procedures”, Journal of Law, Vol. 41 (2020) No. 9, p. 111-119.

[5] See Shao Shao, “On the Consent of the Tested Person in Polygraph Procedures”, Contemporary Law, Vol. 26 (2012) No. 4, p. 53-58.

[6] See Yongcun Cui, “On the Institutional Regulation of Criminal Remote Trial”, Legal Studies, Vol. 45 (2023) No. 2, p. 118-135.

[7] See Jin’e Wu, “Study on the Construction and Operation Mechanism of the Defendant’s Right to Choose Criminal Speedy Trial in Absentia”, Politics and Law, (2020) No. 8, p. 149-161.

[8] Xiaohua Ye, “On the construction of the balance between prosecution and defence”, Journal of Soochow University (Philosophy and Social Science Edition), (2008) No. 1, p. 60-64.

[9] For discussion and research on this phenomenon, see Zongzhi Long, “The Key to Improving the Plea and Penalty Leniency System is the Balance between Prosecution and Defence”, Global Law Review, Vol. 42 (2020) No. 2, p. 5-22; Xiaona Wei, “The Relationship between the Plea and the Defence in the Plea and Penalty Leniency System”, Chinese Journal of Criminal Law, (2021) No. 6, p. 52-66; Dianfu Chen, Mingzhen Wang: “Reflection on the imbalance between prosecution and defence in the system of plea bargaining and leniency and the reconstruction of rules”, Journal of Henan University of Finance and Law, Vol. 38 (2023) No. 4, p. 135-144.

[10] Shu Xie, “The Abandonment and Transcendence of the Theory of the Subject of Criminal Proceedings”, China Law Journal, No. 3, 2023.

[11] See [Japanese] Moriichi Taguchi, The Purpose of Criminal Procedure, translated by Ling Zhang and Xiufeng Yu, China University of Political Science and Law Press, 2011, p. 32-34.

[12] See Qiuhong Xiong, “Plea and Penalty Leniency System in the Perspective of Comparative Law--Another Essay on the “Fourth Paradigm” of Criminal Procedure”, Comparative Law Studies, (2019) No5., p. 80-101.

[13] For the framework, characteristics, and application scenarios of the procedural consent rights of parties in civil litigation, see Hao Li, “Study on the Right of Procedural Consent of Civil Litigants”, Law Review, Vol. 41 (2023) No. 6, p. 57-69.

[14] See Lintao Dong, “On the Consent of the Pursued Individual in Plea and Penalty Procedures”, Journal of Law, Vol. 41 (2020) No. 9, p. 111-119.

[15] Article 217 of the Criminal Procedure Law stipulates: “When trying cases under summary procedure, the judge shall inquire about the defendant’s opinion on the alleged facts of the crime, inform the defendant of the legal provisions on the application of summary procedure, and confirm whether the defendant agrees to the application of summary procedure.”

[16] Beijing Haidian District People’s Procuratorate: “White Paper on Misdemeanour Governance (2018-2023)”, in WeChat public number “Haidian Procuratorate”, 12 December 2023.

[17] Article 225 of the Criminal Procedure Law stipulates: “When trying cases under expedited procedure, the people’s court shall conclude the trial within ten days after accepting the case; if the possible sentence involves imprisonment for more than one year, it may be extended to fifteen days.”

[18] See Hongwei Zhang, “Reflection and Transformation of Minors’ Criminal Cases Tried in Camera”, China Youth Social Science, Vol. 40 (2021) No. 6, p. 110-119.

[19] See Yinghui Song, Na Li, “The Implementation of the Principle of Maximising Children’s Interests in Criminal Proceedings”, China Youth Social Science, Vol. 41 (2022) No. 1, p. 117-129.

[20] See Hongwei Zhang, “Reflection and Transformation of Minors’ Criminal Cases Tried in Camera”, China Youth Social Science, Vol. 40 (2021) No. 6, p. 110-119.

[21] From 2020 to 2022, the number of juvenile crime suspects accepted for examination and arrest by procuratorial organs was 37,681, 55,379, and 49,070 respectively, while the number of juvenile crime suspects accepted for examination and prosecution was 54,954, 73,998, and 78,467 respectively. See “White Paper on Juvenile Prosecution Work (2022)” published by the Supreme People’s Procuratorate on June 1, 2023.

[22] See Yanshun Li, “Institutional Design of Minors’ Privacy Protection in Criminal Proceedings”, China Youth Studies, (2016) No. 4, p. 34-39.

[23] See Jin’e Wu, “Study on the Construction and Operation Mechanism of the Defendant’s Right to Choose Criminal Speedy Trial in Absentia”, Politics and Law, (2020) No. 8, p. 149-161.

[24] See Chunlei Min, “Effective Defence in Plea and Punishment Cases”, Contemporary Law, Vol. 31 (2017) No. 4, p. 27-37.