刑事審後程序：刑事訴訟程序的新大陸 —— 以刑事一體化理論為視角

Abstract

Modern science has fully proved that the fragmented ideological methods and static concepts of fragmentation have become an enormous obstacle to scientific research. Therefore, in the first half of the 20th century, a new paradigm called the systematic theory that explored the concept of the "whole" or "system" was born. The essence of the theory of criminal integration is to use systematic theory to study the essence of criminal studies. If we were to further the study of criminal integration theory, it is necessary to put various criminal departments into the overall context of criminal disciplines. There is also a need to link the group of the subject as a whole to the disciplines of various criminal departments. Therefore, this book analyzes the criminal post-trial procedure of criminal procedure law from the perspective of criminal integration theory.

The general theory of criminal procedure law holds that, in a narrow sense, criminal proceedings refer only to criminal trial procedures. Whereas criminal proceedings in a broad sense include criminal pretrial procedures consisting mainly of filing, investigating, examining and prosecuting and initiating public prosecution, criminal trial procedures consisting mainly of summary procedure and ordinary procedure, and criminal enforcement procedures. In most countries, criminal procedures in national legislative, judicial and theoretical researches generally refers to the criminal procedure in a broad sense, and that leads to the division of the criminal pretrial procedure, the criminal trial procedure and the "criminal post-trial procedure". With the continuous development of judicial practice in criminal proceedings, the "criminal post-trial procedure" should include the "criminal post-execution procedure" consisting of rehabilitation protection procedures, criminal elimination procedures, and criminal compensation procedures, in addition to the traditional content of "criminal post-execution procedure", forming a broader concept of criminal procedure. However, due to various reasons, the "criminal post-execution procedure" failed to appear in the main body of the criminal procedure. Therefore, in the theory and practice of criminal procedure, the "criminal post-trial procedure" has always existed as an unformed "New World".

By carefully analyzing the theory of the purposes of criminal law and criminal procedure law and the new development of judicial practice in criminal proceedings, this book is surprised to find that the theoretical study of criminal proceedings is not only lagging behind the theoretical research in other aspects of criminal litigation and theoretical research on the purposes of criminal law and criminal procedure law, but also failed to response to the evolving judicial practices in criminal litigation. That leads to a significant problem in the theory and practice of criminal procedure which needs to be solved. The major problem is that the current criminal procedure has become an imperfect system, or the current criminal procedure can no longer meet the needs of the purposes of criminal law and criminal procedure law. Only by constructing a "criminal post-trial procedure" and adding it to the criminal proceedings will it be genuinely complete and provide the necessary platform to realize the purposes of criminal law and criminal procedure law fully.

This book cut in from the realization of aims of the criminal law angle to analyzes the internal motivation and reason of the "criminal post-trial procedure". Through the comparative analysis of the execution procedure and the criminal trial procedure, etc, this book reveals the appearance and basic characteristics of the "criminal post-trial procedure", finds out the "criminal post-trial procedure" which existing in the form of "Fragmentation", analyses the mode, characteristics and main problems of its current legislation, proposes suggestions and methods for perfecting corresponding legislation, constructs the "criminal post-trial procedure" with the structure and theoretical basis fully studied, thus theoretically explores the two basic questions of "why there is a criminal post-trial procedure" and "what is the criminal after-trial procedure".

As everyone knows, after Columbus discovered the New World, he subverted the universally recognized concept that "the earth is flat". The advocacy of the "criminal post-trial procedure", maybe not subversive, but will nevertheless change and amend some general or basic views of the fundamental theory of criminal procedure law, so that we at least recognize in theory that, the criminal procedure should have a huge positive effect on the rigid protection of the legitimate rights and interests of the parties and the reduction or even avoidance of state power intervention, and it should provide criminal parties with comprehensive, adequate and balanced protection of human rights. Analyzing the "New World" aka the "criminal post-trial procedure" provides not only new battlefields for the development of theory and practice of criminal procedure but also contributes by providing new intellectual support for the improvement of criminal integration theory. Besides, it can pose dramatic effects in some aspects of the criminal procedure law, such as its basic concepts, existing principles, values, and goals.

Date of Award	3 Jun 2020
Original language	Chinese (Traditional)
Awarding Institution	City University of Hong Kong
Supervisor	Xin Frank HE (Supervisor) & Tianxiang HE (Supervisor)