What is the concept of criminal justice in modern society?

Modern criminal justice concept is the result of human civilization ruled by law, and it is a series of rational concepts that must be followed in judicial activities proved by long-term judicial practice at home and abroad. Its connotation is very rich, and independence, equality, neutrality, transparency, justice, efficiency and civilization are all indispensable and important contents. This paper focuses on the scientific connotation of modern criminal justice concepts such as fairness and efficiency, paying equal attention to punishing crimes and protecting human rights, paying equal attention to substantive law and procedural law, civilized justice and light punishment, and makes rational thinking on how to further establish and implement these concepts.

First, the concept of justice and efficiency-"the eternal theme of modern criminal justice"

"Justice and efficiency" means that justice should not only pursue justice, but also pursue efficiency and justice; Litigation should pay attention to both fairness and efficiency. It reflects the essence and characteristics of justice and is the core content of modern criminal justice concept. Only by correctly grasping the relationship between them can we better practice this eternal theme.

1. The idea of fairness and efficiency is a legal proposition. "Justice" is an ancient and often new concept. It is ancient because it is an eternal proposition in philosophy, politics and law. Its novelty lies in different historical periods, different nationalities and different cultural circles have different understandings of it. Its concept has both historical connotation and practical significance, and people have different opinions. As Bodenheimer, an American jurist, said, "Justice has a face like Proteus, which is changeable, can take different shapes at any time and has a very different face." (1) Judicial justice mainly refers to the judicial organs applying laws to solve disputes. It is "the ideal state achieved by various factors in the operation of judicial power, including various factors related to the operation of judicial power, from subject to object, from content to form, from entity to procedure, from static to dynamic, all reaching a reasonable and orderly state." ②

The same is true of the concept of "efficiency", which is widely used in economics, sociology and law and given different connotations. It has the connotation of time and speed, as well as cost and effect. Judicial efficiency refers to reducing the judicial cost by making full and reasonable use of judicial resources, and obtaining the maximum result with the minimum judicial cost.

With the development of the times and the renewal of ideas, the judicial circles gradually realize that the connotation of justice mentioned by the court is different from that in social and traditional concepts. The justice mentioned by the court is "judicial justice", which is stipulated and adjusted by law, based on legal truth, evidence judgment and legal facts. However, justice in the general moral sense is different. For example, "killing for life" is justice in general moral concepts. However, as far as judicial justice is concerned, when the fact of murder enters the proceedings depends on the facts of the case, the circumstances of the crime, and the evidence of the final decision. In short, it is influenced by many factors. Therefore, it cannot be considered that the court's failure to sentence the murderer to death is judicial injustice; On the contrary, the court's refusal to impose the death penalty on murderers with statutory mitigating circumstances or questionable evidence precisely reflects judicial justice. It can be seen that there is sometimes a huge contrast between judicial justice and justice in moral concepts. Therefore, in order to establish the concept of modern criminal justice, judges engaged in criminal trials must first make clear what is judicial justice, and only in this way can judicial justice be truly realized.

2. The concept of fairness and efficiency is a scientific proposition. The scientific concept of justice and efficiency lies in that it embodies the particularity and regularity of the court's work, that is, the court must pursue passivity and follow the principle of "don't sue and ignore", and the court can't take the initiative to ask the parties to appear in court, let alone "not investigate the case" or even "not establish the case"; At the same time, judicial trials also adhere to the principle of neutrality, and courts and judges should be fair to both parties.

3. Correctly grasp the dialectical relationship between fairness and efficiency. Justice is the primary value of law. In criminal trials, it is necessary to accurately and timely find out the facts of the case, correctly apply the law, strictly implement the principles of a legally prescribed punishment for a crime, adaptation of the crime and punishment and presumption of innocence, ensure accurate conviction and appropriate sentencing, and protect the innocent from criminal investigation, that is, ensure judicial justice first. The concept of efficiency requires the maximum judicial effect with the least judicial investment and the shortest litigation time, so as to achieve the purpose of litigation. Fairness and efficiency are dialectical unity. Without justice, efficiency is meaningless; Without efficiency, the value of justice will be greatly reduced, because "justice for a long time is injustice" and "justice delayed is justice deprived". Because criminal trial may deprive the defendant of personal freedom, property rights and even life, justice is the first and efficiency is the second in criminal trial. Justice is the soul and life of litigation. The ancients said, "You can't have your cake and eat it." Compared with justice, efficiency is just a "fish" rather than a "bear's paw", and efficiency can never be improved at the expense of justice. Therefore, efficiency should absolutely obey and serve righteousness. If we only pursue efficiency unilaterally, the quality of the case may not be guaranteed, and eventually it will take some time and judicial resources to correct the mistakes, which will not only undermine justice, but also the value of efficiency itself cannot be realized. Therefore, "only fair justice is the most efficient. However, unfair judgments or even misinterpretations of laws can not only fail to solve conflicts and disputes in time, but also induce social emotions and behaviors, leading to the aggravation of social disorder and chaos. So it is the least efficient. " ③

At the same time, under the premise of ensuring justice, we should strengthen the awareness of efficiency and improve the efficiency of the trial as much as possible. At the beginning of the new century, the Supreme People's Court's emphasis on judicial efficiency has the characteristics of the times and conforms to the world trend. The reason why it has the characteristics of the times is that we live in an information age, pay attention to efficiency, and people pursue efficient justice; The reason why it conforms to the world trend is that the common feature of judicial reform in all countries in the world is to improve judicial efficiency. Due to the huge number of litigation cases, improving efficiency is the demand of society. Therefore, inefficient justice is not fair justice.

Fairness and efficiency are inseparable. Without justice, efficiency loses its meaning; Without efficiency, it is impossible to achieve true justice. The two must develop in harmony, and pursuing only one aspect is one-sided and harmful to the whole judicial value.

The second is the concept of paying equal attention to punishing crimes and protecting human rights-"if you are guilty, you will be sentenced."

Punishing crimes and protecting human rights are the basic purposes of criminal proceedings and are in an equally important position. In criminal proceedings, people's courts should not only punish crimes according to law, safeguard the interests of the country and the people, and maintain normal social order, but also safeguard human rights and respect and protect the litigation rights of defendants according to law. The National People's Congress has approved China's accession to the International Convention for the Minimum Protection of Human Rights, and "respecting and safeguarding human rights" has also been written into the Constitution. With the acceleration of the process of governing the country according to law, we must enhance our awareness of human rights protection. We establish this concept, that is, first, we must adhere to the principle of "guilty and innocent"; Second, we must fully guarantee the defendant to exercise his litigation rights according to law; Third, we must strictly enforce the trial limit to prevent "two overloads".

1. To establish the concept of paying equal attention to punishing crimes and protecting human rights, we must adhere to the principle of "those who are convicted and those who are acquitted". "Guilt leads to judgment, innocence leads to release" is the core of modern criminal justice concept. That is, after a criminal case is tried, the facts of the case are clear, the evidence is true and sufficient, and the defendant is found guilty according to law, and a guilty verdict shall be made according to law; If the defendant is found innocent according to law, a verdict of innocence shall be made according to law; If the defendant cannot be found guilty because of insufficient evidence, he should be acquitted because of insufficient evidence, and the accused crime cannot be established, so as to protect the innocent from criminal investigation.

2. To establish the concept of paying equal attention to punishing crimes and protecting human rights, the defendant must be fully guaranteed to exercise his litigation rights according to law. In particular, the defendant should be fully guaranteed to exercise various litigation rights such as application for withdrawal, defense, proof, final statement and appeal. The trial according to law truly embodies the protection of human rights in accordance with the law throughout the trial activities. In order to fully embody the protection of human rights according to law, two universities have formulated the Provisions on Legal Aid in Criminal Procedure, the essence of which is to further implement the defense system through legal aid, strengthen the awareness of human rights protection and promote judicial justice.

3. To establish the concept of paying equal attention to punishing crimes and protecting human rights, we must strictly implement the trial period to prevent the occurrence of "two super cases". When the people's court punishes a crime according to law, it must conclude the case within the statutory time limit to ensure that the punishment has the expected blow and deterrent effect; At the same time, if there is not enough evidence to accuse the defendant of a crime within the statutory time limit, the proceedings must be terminated and the defendant declared innocent. This is a concrete measure to protect the defendant's human rights according to law, and it is also an inevitable requirement for the people's court to handle cases strictly according to law. It is strictly forbidden to arbitrarily extend the detention period or detain the defendant in disguised form.

To carry out the concept of paying equal attention to punishing crimes and protecting human rights, we must effectively solve the problems of extended detention and extended detention. There are many reasons for the case of "two excesses", such as ideological neglect, weak awareness of trial limitation and imperfect prevention mechanism. However, the author believes that the lack of legislation is also an important reason for the phenomenon of "two excesses": First, the trial time limit stipulated in China's criminal procedure law is very short, and the trial time limit of general cases is only one and a half months. If the weekend is deducted, the actual working day of the general case is only 23 days; Second, the trial period is related to the detention period, and the case cannot be concluded within the trial period, which naturally leads to the defendant's extended detention; Third, regardless of the complexity of the case, it is unscientific to implement the same trial limit. The consequence of the above factors is that, on the surface, the court always seems to be breaking the law, and there are always problems of exceeding the trial limit and overdue detention. But the reason is closely related to the imperfect legislation. To this end, the author suggests that this point should be solved from the legislative level when amending the criminal procedure law: First, extend the trial period. Throughout the world, there is no trial period in common law countries, and judges can use it as long as they need to handle cases; Although there is a trial time limit in civil law countries, it is much longer than in China. Therefore, the period of criminal trial in China should be extended. Second, in addition to criminal suspects who may be sentenced to life imprisonment or more according to law, a compulsory measure system based on bail pending trial and supplemented by detention should be established. The third is to separate the trial period from the detention period, and reform and improve the trial limit according to the principle of separation of complexity and simplicity. The fourth is to establish criminal pre-trial procedures and strictly implement the conditions for bringing cases to trial. Of course, before the revision of the Criminal Procedure Law, the solution is to simplify the complex, expand the scope of application of summary procedure, and further deepen the simplified trial of ordinary procedure, so as to achieve the purpose of improving efficiency.

Third, the idea of paying equal attention to substantive law and procedural law-"process and result are equally important"

When trying criminal cases, the people's courts should strictly follow the provisions of the Criminal Law and the Criminal Procedure Law, which is the minimum requirement of fair justice. Judicial justice includes not only substantive justice, but also procedural justice. There is an old saying in the west that "justice should not only be realized, but also be realized in a way that people can see". The characteristics of substantive justice of crime are that the guilty must be punished, the innocent must not be punished, the crime and punishment should be adapted, and the crime and punishment should be legally prescribed. Procedural justice is manifested in the legitimacy and legality of the litigation procedure itself. The traditional concept of criminal procedure in China only regards procedure as a means and tool to realize substantive justice, and its own value has long been ignored. In fact, procedural justice is the most important and basic concept of modern rule of law. Procedure is not only the means and guarantee to realize substantive justice, but also has its unique value connotation. It achieved justice in a visible way. Marx once made an incisive exposition on the relationship between substantive law and procedural law, pointing out: "The relationship between trial procedure and law is so close, just like the relationship between the shape of plants and the shape of animals, and the relationship between flesh and blood. The trial procedure and the law should have the same spirit, because the trial procedure is only the life form of the law, so it is also the expression of the internal life of the law. " (4) This expression clearly shows that the criminal procedure law and criminal law are the unity of form and content, and procedural justice and substantive justice are the unity of methods and tasks.

In a sense, the spirit of the Criminal Procedure Law lies in paying attention to the protection of human rights in the process of punishing crimes. Judging from the current situation, because China has not yet established a complete rule of evidence in criminal proceedings, the Outline of the Second Five-Year Reform proposes to formulate criminal evidence rules, exclude verbal evidence obtained by illegal means such as extorting confessions by torture, strengthen the appearance of witnesses and experts in court, and further implement the principles of safeguarding human rights and presumption of innocence. Therefore, we should strengthen the exploration and research on establishing and perfecting the rules of evidence in criminal proceedings.

Fourth, the concept of independent trial and trial-centered-"not only books, but also laws"

The independent exercise of judicial power according to law is an important judicial principle stipulated by the Constitution, which is not only the necessary guarantee of judicial justice, but also the legal duty of the people's courts. When trying criminal cases, the people's courts must stand in a neutral position, strengthen the consciousness of neutral judgment, attach importance to the opinions of both the prosecution and the defense, maintain fairness, treat both the prosecution and the defense equally, and judge in the middle, which fully embodies fairness and justice. In order to ensure independent trial and intermediate judgment, it is not possible to "jointly handle cases" by the public, the procuratorate and the law for specific cases, because this does not conform to the principle of judicial neutrality and is not conducive to fair justice; Nor can the court intervene at an early stage that is not in line with the law.

Fifth, the concept of civilized justice-"image justice is equally important"

The civilization of criminal justice is an integral part of the civilization ruled by law and an important part of the construction of socialist political civilization. Building a harmonious socialist society puts forward new and higher requirements for criminal justice. Therefore, criminal trial judges should firmly establish the concept of civilized justice, pay attention to civilized justice in trial, investigation and evidence collection, sentencing and execution, and realize substantive justice and procedural justice while realizing image justice. Because the criminal defendant has a special litigation role and social identity, the preconceived emotions expressed by the judge in language and expression may give people an unfair feeling and affect the authority and credibility of the referee. Therefore, image justice should be regarded as an important part of changing the way of trial and displaying the image of civilization, and practical measures should be taken to achieve practical results.

To realize image justice and civilized justice, we must first achieve procedural justice, try cases in strict accordance with legal procedures, protect human rights according to law, and adjudicate in the middle. Secondly, we must resolutely abandon and put an end to uncivilized practices in judicial activities. In the past, some places created the momentum of "strike hard" and demonstrated the power of "strike hard" by bundling and parading the streets. This practice has not adapted to the requirements of historical progress and civilization ruled by law, and should be resolutely abandoned and eliminated. Uncivilized practices such as centralized and unified sentencing and centralized and unified execution of the death penalty should also be resolutely abolished.

Sixth, establish a correct concept of punishment-"combining leniency with severity, punishing crimes"

How to apply the penalty correctly is not only a matter of enforcing the law seriously, but also a matter of how the penalty can play its role. Therefore, we must establish a correct guiding ideology of punishment, a scientific and progressive view of punishment and a correct orientation of punishment value.

1. We must attach great importance to sentencing in order to establish a correct concept of punishment. For a long time, the phenomenon of heavy conviction and light sentencing has been widespread. Some people think that as long as the facts are clear, the evidence is conclusive, the nature is accurate, and the procedure is legal, it doesn't matter whether the criminal case is lighter or heavier within the scope of legal punishment. Especially in the "strike hard" campaign, it is wrong to think that it is more a question of method than a question of position, and that all people will get heavier sentences and they will not be punished as crimes. Sentencing is an important aspect of applying the law, and it is also related to the justice of the case. Improper sentencing will weaken and reduce the applicable effect and function of punishment, or the sentencing results of the same kind of cases are quite different in different regions, or even the same court makes completely different judgments on the same kind of cases. Only by strictly implementing the principle of adapting crime to punishment and accurately sentencing can the effectiveness of punishment be fully exerted and the purpose of punishment be realized.

2. Establishing a correct concept of punishment is the way to gradually reduce punishment. Beccaria, a famous Italian criminal jurist, once pointed out: "The latest torture in history has never made people who are determined to go against society change their minds." (5) A correct punishment, whose intensity is enough to stop people from committing crimes. With the development of China's economy and the progress of social civilization, it is inevitable that the punishment will be lighter. The causes of crime are complex, and the increase of crime is by no means harsh or light. Although severe punishment has a deterrent effect on crime, it cannot fundamentally prevent and eliminate crime. Long-term implementation of the doctrine of severe punishment will inevitably lead to the gradual accumulation of negative effects of punishment and form unstable factors that endanger society. If the punishment is improper, especially if the misdemeanor is severely sentenced, it is easy for criminals, their families, relatives and friends to have dissatisfaction or even hatred against the country and society. The more these people gather, the greater the threat to the country and society. Therefore, we must correctly use punishment from the political height of ensuring the long-term stability of the country.

First of all, the application of the death penalty should be strictly restricted. Strictly controlling the application of the death penalty and gradually reducing the death penalty is the direction of criminal justice reform in China and the development trend of the international community. The Supreme People's Court's right to withdraw the death penalty is also here. The death penalty is a matter of life and death, so we must be cautious. Because "so far, the judicial system designed by human beings is not perfect, and it will never be perfect. A fair judge may also make a wrong death sentence because of wrong evidence and false facts. " The death penalty is a punishment that deprives the defendant of his life. Once misused, it will be irreversible and irreversible, because people cannot be resurrected after death. Mao Zedong once pointed out: "Anyone who can or cannot be killed must never be killed. If you kill, you will make mistakes. " ⑥ In criminal trials, we should resolutely implement the death penalty policy of "killing less and killing cautiously" so that every death penalty case can stand the test of history. Cases that should be sentenced to death according to law can only be very few criminals with extremely serious crimes. If there is a statutory lighter or mitigated circumstance, it shall be given a lighter or mitigated punishment according to law. If the death penalty is not executed immediately, it may be suspended. We can't immediately execute those who can or can't be killed for the so-called "public anger". In cases where a crime should be sentenced to death, but it cannot be executed immediately, we should pay attention to publicizing the spirit of law and criminal policy and guide the public to change their concepts.

Secondly, non-custodial sentences such as public surveillance, probation, fines and deprivation of political rights are fully applied according to law. Whether it is principal punishment or supplementary punishment, imprisonment or non-imprisonment punishment, it is an important part of China's penalty system and an effective means to combat crime. For criminals with serious crimes and great social harm, fixed-term imprisonment or even life imprisonment should be applied, while for criminals with minor crimes, little social harm and repentance, non-fixed-term imprisonment should be applied according to law, which is also conducive to implementing the principle of adapting crime to punishment and the criminal policy of combining leniency with severity, eliminating the opposing feelings of criminals, enhancing their consciousness of receiving education and reform, and achieving the purpose of education and reform; It is also conducive to reducing the chances of criminals' cross-infection and recidivism, and has long-term significance for the long-term stability of society. At the same time, it can also reduce the burden of imprisonment, reduce the cost of punishment and rationally allocate limited punishment resources. In this regard, we should update our concepts in time. Criminals who commit minor crimes, are not deeply subjective and vicious, or do show repentance, and will not endanger the society again if they are not put in prison, especially first-time offenders, occasional offenders and minor offenders with minor crimes, should be fully applied with non-custodial sentences such as public surveillance, probation and single punishment in strict accordance with legal conditions.