Why should we emphasize the protection of the defendant's rights?

When I was teaching undergraduates last year, several students raised a question that I also encountered when I was a beginner in criminal procedure law-why do scholars always emphasize the protection of the defendant's rights and rarely talk about the protection of the victim's rights? I remember in class, I simply said that protecting the rights of the defendant is actually protecting everyone's rights, because everyone, even the most honest and respected person, may face criminal charges from the state, become a defendant, and even become a victim of the judicial department. However, now that I think about it carefully, the answer at that time was not sufficient. Because, people can also say that protecting the rights of victims is also protecting everyone, because everyone may also become a victim. In particular, my answer above did not really explain clearly. Why should China emphasize the protection of the defendant's rights today? Some time ago, the author had the honor to attend a seminar on the revision of the criminal procedure law. At that meeting, a senior judge raised a similar question. He said almost contemptuously that scholars always talk about Britain and the United States and like to advocate the protection of the rights of defendants. However, the victim's rights also need to be protected, and the revision of the criminal procedure law should maintain a reasonable balance between protecting the defendant and protecting the victim, especially protecting the victim's rights. Although the author doesn't think his point of view is wrong (in fact, many legal issues are not simply right or wrong, but more a matter of value choice), he still exchanged views with him politely. My basic point is that protecting the rights of defendants is more urgent and necessary than protecting the rights of victims, and even has priority, especially for China at present. Although it seems to me that some convincing reasons have been put forward, they obviously failed to convince the judge. However, the author speculates and even draws a conclusion that I failed to convince him, not only because people, especially adults, are unwilling to change their views easily, but also because, in the concept of China people, including many legal persons, the victim is the most miserable and needs sympathy and protection most, because he has been violated by criminal acts. When a crime happens, the media always likes to report the serious consequences of the crime. Even before the case entered the court, the defendant had become the "devil" in the hearts of the people. Therefore, in the eyes of many people, protecting the rights of the defendant does not take precedence over protecting the rights of the victims. Not surprisingly, why can't many people, especially non-lawyers, understand: Why are the "bad guys" accused of crimes more fully protected than the "good guys" who have been harmed by criminal acts? Not only that, in fact, many legal researchers always associate the protection of the rights of the defendant with the protection of the rights of the victim when discussing the related issues of criminal proceedings, and adopt the so-called "balance theory" viewpoint that we are all very familiar with. Nowadays, the revision of the Criminal Procedure Law has been included in the legislative plan. Recently, the discussion on amending the criminal procedure law has also been a hot topic in the field of procedural law. However, in the face of the above problems and the criticism of the revision of the Criminal Procedure Law to further strengthen the protection of the rights of the defendant, it seems that the legal person has the responsibility to answer: What makes it necessary to emphasize the protection of the rights of the defendant rather than the protection of the rights of the victim (especially in China today)? If we can't provide convincing reasons and basis, we can't fully prove that those claims aimed at expanding the territory of defendant's rights are justified. This is because in recent years, scholars have advocated a series of procedural reform schemes under the banner of "procedural justice" and "human rights protection", such as establishing perfect exclusionary rules of illegal evidence, drawing lessons from plea bargaining in Britain and America, and introducing the principle of avoiding double jeopardy in Britain and America. -It will have a more or less impact on the country's effective fight against crime and the protection of victims' rights. In particular, the implementation of the exclusionary rule of illegal evidence, which is characterized by invalidity, is more likely to put the defendant and the victim in a direct opposition or even "incompatible" position-the implementation of the exclusionary rule will often bring negative consequences to the victim and make the innocent victim suffer losses. Therefore, it is almost natural for people to ask: In order to protect the rights of the defendant, can we ignore the rights of the victim? What is the tension between protecting the rights of victims and protecting the rights of defendants? How to create a "win-win" situation in the revision of criminal procedure law? The author has no intention to answer all the above questions, but only wants to talk about his own views on why the protection of the defendant's rights should be emphasized. First of all, whether to protect the rights of the defendant or the rights of the victim has never been an absolutely eternal standard. The key to protecting whose rights is to see whose rights are threatened. In modern major countries, due to the establishment of the principle of state prosecution, the rights of defendants are always in danger of being violated or even deprived by state power. Comparatively speaking, the rights of victims are less likely to be violated and deprived by state power. We know that in the early history of human society, due to the newly formed state form, the state's ability to control the whole society is still very limited, and the intervention of state power in social conflicts is also relatively weak. For all kinds of conflicts that have occurred, including very serious criminal acts, the state generally does not take the initiative to pursue them, but regards them as private interest disputes, and the parties file lawsuits on their own, and the state only acts as an authoritative arbitrator for arbitration. Under this litigation system called "impeachment litigation", the protection of the defendant's rights is not the most urgent relative to the victim. On the contrary, how to ensure the victim's desire for revenge and get the necessary compensation after being infringed by crime is the most critical. After entering the feudal society, with the rise of centralized state, facing the fact that a large number of criminal acts are at large, the ruling class suddenly realized that investigating crimes is not only the private affairs of the victims, but also the responsibility of the state itself. Therefore, on the basis of abolishing the impeachment litigation mode, the history of inquisitorial litigation began. An important feature of the inquisitorial litigation system is that "no prosecution is reasonable". Moreover, under this litigation system, the accusation function and the trial function are seriously confused, and the judge is the only person who enjoys all kinds of rights. The defendant is only the object of torture and investigation in the lawsuit, and has only the obligation to confess and no right to defense. The judiciary can force him to confess by coercive means. "Defendants are helpless in front of prosecutors who have the power of judges", and judicial arbitrariness is extremely common. It is precisely because of the serious drawbacks of inquisitorial proceedings that some enlightenment thinkers hold high the banner of human rights and put forward the requirements of improving the treatment of defendants and strengthening the protection of procedural rights, which not only laid a theoretical foundation for the protection of defendants' rights, but also opened a new era centered on the protection of defendants' rights. However, the principle of national prosecution is still a common practice in modern countries. In this context, the prosecution procedure for criminal acts can only be done by the state (power), and it is done by the state according to its authority (obligation), without waiting for private requests or being bound by private individuals. Under the litigation pattern of the state (the strong) against the defendant (the weak), how to prevent and restrain the abuse or transfer of the state's right of prosecution through the design and implementation of the procedure, and ensure that those criminal suspects or defendants in the prosecuted position have some basic defense rights, so that they can become the subject of litigation and oppose the criminal prosecution of state organs, including their defense lawyers, through their own actions, has become the main topic that criminal justice in all countries including China must face. A typical example is that in recent decades, the whole world is in a turbulent state of judicial reform. The main goal of the reform is still to limit the state's right to sue and ensure that the parties whose rights have been violated, especially the defendants, can get effective judicial relief. For example, France has adopted the freedom and detention of judges, and Russia has established a judicial review mechanism. Even in Taiwan Province Province, China, the investigation judge system has been introduced. This fully shows that. Paying attention to the limitation of power and the realization of rights is still a basic problem of criminal justice in all countries, especially those countries with low level of development of rule of law. Secondly, because there are still many problems to be solved urgently in the protection of defendants' rights in China, a major problem that needs to be revised in China's criminal proceedings should be to stipulate the important litigation rights of defendants generally established in modern countries ruled by law, and to respect and realize these rights in the construction of criminal proceedings. In western countries and regions ruled by law, especially Britain and the United States, the Constitution and laws grant defendants extensive rights and establish a strict protection system. Therefore, in these countries and regions, protecting the rights of defendants is not so urgent. In Britain and the United States, based on the judicial reality of over-protection of the defendant's rights, there has also been a call and trend of "going back", which shows that the criminal justice policies of many countries have shifted from focusing on criminals to emphasizing the balance between the rights of victims and defendants, and have begun to emphasize the balance between the interests of victims and the interests of the state. For example, in Britain, the right to silence is always beneficial to criminals rather than innocent people. Therefore, under the impetus of the wave of opposition, in 197 1, the British Criminal Law Reform Committee put forward a report: if the defendant does not answer the police's questions during the police interrogation, and the questions raised are the facts that the defendant defended in court, the court can make inferences about the defendant's initial silence; If the defendant refuses to testify in the trial, he should also make inferences against the defendant. But in my opinion, this international trend of protecting victims' human rights is not entirely suitable for China. This is because, for a long time, in our country, both criminal procedure legislation and criminal justice emphasize and pursue effective crime control, but the protection of the defendant's rights has not been paid enough attention. Although the criminal procedure law revised by 1996 has made great progress in strengthening the protection of defendants' rights, many rights of defendants are generally established in modern countries ruled by law and international human rights conventions, such as "being informed of the charges and their reasons in time", "getting adequate defense preparation and court defense opportunities", "applying to the court to summon our witnesses by compulsory means" and "confronting the opposing witnesses in court". ), as well as the litigation principles related to the defendant's rights (such as "presumption of innocence", "no one shall be forced to testify against himself", "no one shall suffer double jeopardy for the same act" and "fair trial principle"), have not been clearly established in China's criminal procedure law, and there is no corresponding procedural guarantee. Even the provisions related to the protection of the defendant's rights, such as the right of defense lawyers to participate in litigation, which have been clearly stipulated in the Criminal Procedure Law, have not been effectively implemented, which makes a series of litigation rights of criminal suspects and defendants often in a virtual state, so as to fundamentally damage the defendant's basic human rights that should be protected by the Constitution. Therefore, for the current China, how to further expand the rights of the defendant, especially through the improvement of legislative technology to ensure the exercise of rights, to enhance the defendant's litigation status, is particularly urgent, and should also be a major goal of the revision of the Criminal Procedure Law! Finally, there is often a trade-off relationship between the rights of the defendant and the rights of the victim. For the victims and defendants who are actually in opposite positions, the expansion and exercise of the rights of either party may mean the increase of the obligations and responsibilities of the other party. Although the exercise and expansion of the victim's rights do not always lead to the sacrifice of the defendant's rights, there is no doubt that if the protection of the victim's rights is overemphasized, it will not only dilute or even completely erode the theme and soul of the criminal procedure law, but also ruin the progress made in the protection of the defendant's rights in China. Today's era is an era towards rights. In a modern country ruled by law, the criminal procedure law not only no longer simply pursues the goal of punishing crimes, controlling crimes, and further maintaining social security and public order, but also regards the protection of the basic rights and freedoms of criminal suspects and defendants as an important symbol of a democratic and civilized society. Under this background, especially because the protection of the defendant's rights in China is not sufficient, even weak, if we overemphasize the protection of the victim's rights, it may lead to the destruction of the progress made in the protection of the defendant in criminal proceedings in China. This can be proved by the disadvantages brought by the modification of 1996 criminal procedure law, which gives the victim the status of party. Originally, according to the basic procedural jurisprudence, in a public prosecution case, the victim should not actually have the status of "party (person)" because the subject of the accusation is the people's procuratorate. However, the revised Criminal Procedure Law of 1996 establishes the victim as a party to a public prosecution case, and gives him a series of rights that are basically the same as those of the defendant, such as interrogating the defendant, questioning witnesses, investigating other evidence, asking the court to obtain new evidence, expressing opinions and debating during the trial, etc. Although the litigation status granted to the victim may indeed help protect the rights of the victim, it further aggravates the inequality between the defendant and the prosecutor, which not only greatly increases the probability of the defendant being convicted, but also distorts or even distorts the litigation structure to some extent. If this unequal pattern cannot be fundamentally changed, criminal justice will lose its due quality. Because, "equality creates justice and constitutes justice." For another example, according to the provisions of China's current criminal procedure law, defense lawyers can collect materials related to the case from the victim without the permission of the people's procuratorate or the people's court, or with the consent of the victim or his close relatives and witnesses provided by him; In fact, this greatly limits the right of the defendant and his defender to investigate and collect evidence, thus reducing the defense ability of the defense. Obviously, a defense lawyer whose mission is to protect the rights of the defendant-to help the defendant get rid of the crime in the eyes of the victim-can hardly get the voluntary cooperation of the victim. Because of this, it is obviously inappropriate to blindly increase the rights of victims in the revision of China's criminal procedure law. Otherwise, it is easy to damage some basic rights enjoyed by the defendant. For example, it is obviously inappropriate to give the victim the right of appeal advocated by many scholars. Here, the practices of the countries concerned are really worth learning from China. For example, in the United States, in order to protect the defendant's right to "avoid double jeopardy", the law does not give the victim multiple prosecutions for the same fact; In order to protect the defendant from jury trial, the law does not give the victim the right to exclude jury trial; In order to maintain the opportunity for the defendant to confront the witnesses against him, the law does not give the victim the right to "remain silent" in the cross-examination of the defendant in court, unless the relevant issues are irrelevant to the case or will lead to the victim's self-incrimination against his relatives; Wait a minute. To sum up, although the author agrees in principle, criminal procedure legislation and criminal justice should establish a balanced right protection system to maintain the dynamic balance of criminal procedure structure, so that both the victim and the defendant can enjoy some basic procedural rights and strive to form a win-win judicial pattern. However, as far as China is concerned, it is not the victims who have been given too much sympathy by the people of China, but the accused who have been spurned, despised and sometimes even "demonized". In fact, judging whether a country's criminal justice is humane, tolerant and democratic depends not only on how it treats "good people" but also on how it treats "bad people". Li Fenfei, Lecturer, Renmin University of China Law School.