The research of victim paticipation in criminal proceeding
| Autor: | Wang jung pu, 王容溥 |
|---|---|
| Rok vydání: | 2013 |
| Druh dokumentu: | 學位論文 ; thesis |
| Popis: | 101 Victims are those who suffering injury and whose right is infringed directly. However, they are always viewed as outsiders and only have the position of object in traditional criminal proceeding. According to this unreasonable situation that victims have no opportunity to express opinion in their own cases, German and Japan put forward “Victim Participation in Criminal Proceeding” as solution. German extended the scope of application of “Nebenklage” in 2004. Consulting Germany “Nebenklage”, Japan submitted “Victim Participation in Proceeding” in June,2007(Japanese Code of Criminal Procedure §315-33~§316-39). In comparing with Germany and Japanese positively establishment of victim participation in criminal proceeding, our government not only orientate themself to the trend of amendment of Authority System and Adversary-Accusatorial System, but also weaken victim’s opportunity to participate in trial proceeding directly. Although, we have submitted the draft of “Victim Participation in Criminal Proceeding”, there are still lots of questions. Therefore, the submission of victim participation in criminal proceeding that are assumed to observe the degree of protection of victim’s right of one country, our country is still in germination step. There is difficulty between realization of ideal and actual practice as submitting victim participation in criminal proceeding. We have to consider five important basic questions: 1. Destroys existing criminal judicial system or not; 2. the rationale; 3. Breaks up Code of Criminal Procedure litigation construction or not; 4.Causes unfair influence to litigation subject (especially refer to defendant) and other participant in proceeding or not; 5. Obstructs the progress of litigation proceeding or not. My opinion is the adoption that adds the consideration of victim into criminal judicial system will not destroy existing judicial system. Victim can find the reasonable basis of participating in trial proceeding by Constitution, Code of Criminal Procedure and the judicial idea of restorative. Besides, “Principle of Unitary Information” is not adopted in our country; court would effectively stop victims over behavior by realizing the case in advance. There is no uncertainty that victim participation in criminal proceeding will destroy “Refined Adversary System” in our litigation construction, even though victims participate in trial as litigant. Fourth and fifth questions are belonged to the range of proportionate consideration. The design and application of victim participation in criminal proceeding must take the questions of avoiding to obstructing court’s fair judgment, prosecutor’s crime prosecution, defendant’s defense, witness’ interest and smooth progress of proceeding into account. It’s inappropriate to adopt “duplicate” way to submit one legal system, because there are different local conditions and customs and different legal advancement in different country. According to this, Japan insisted on the attitude of localization when submitting “Victim Participation in Criminal Proceeding” referring to Germany “Nebenklage”. “Refined Adversary System” is a special litigation construction between German and Japan. Although it’s near to Japanese Adversary System in formal, but the role of judge is close to Germany legal system substantially. If we adopt Japanese Code of Criminal Procedure to amend our legal system, such as “Count System”, ”Principle of Unitary Information”, Japanese “Victim Participation in Criminal Proceeding” would be the first choice. However, in the situation of our existing “Refined Adversary System”, victim should be offered more complete protection of rights, and should participate in trial as “litigant”. My opinion is that it’s inappropriate to graft Germany system on our country totally. Also, in some specified crime, victims could participate in criminal proceeding as “litigant” independent of prosecutor and have the right of requesting to investigate evidence, interrogate witness, and appeal. |
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