This thesis is intended to discover a unified and scientific theory of breaches of criminal procedure and their results. In Chapter One, I provide readers with a way of navigating the argument. In Chapter Two, England, Germany and China are the representative jurisdictions. I then try to harmonise ‘criminal procedure’ and ‘xing-shi su-song-fa’ in Chinese. In Chapter Three, a criminal procedure rule is composed of a procedural direction and the consequence of its breach. Weaknesses in procedural remedies exist in every jurisdiction. In Chapter Four, two obstacles are cleared up: the Anglo-American suspicions about universal legal theory and the antagonistic position between socialist and capitalist laws. Two scientific factors are found: three objectives of criminal procedure: substantive truth, procedural regularity and legal harmony; criminal procedural conduct as the analytical unit. In Chapter Five, civil juristic act theory cannot be mechanically transplanted. Two categorisations are found useful: disposition-influencing conduct, procedure-inducing conduct and adjudicative conduct; conduct by a person in authority and conduct by a person not in authority. In Chapter Six, there are simply proclaimed rules and nullity-backed rules. Breaches of nullity-backed rules can be either absolutely null or relatively null. The treatment of relatively null conducts is either nullification or regularisation. There are three conventional nullifications: reversal of adjudicative conduct; exclusion of disposition-influencing conduct and nullification of procedure-inducing conduct. Regularisation is divided into disposal and overlooking. If substantive aspects are examined, mitigation of sentence and ending of proceedings may be applied. Transmutation of invalid procedural conduct is a peculiar treatment. Then, I briefly integrate the subordinate procedural mechanisms in terms of institutional arrangements and structural constraints. In Chapter Seven, I explore the function of this theory in terms of theoretical guidance, legislation and legal practice, although discretion is unavoidable for deciding the final consequence of many breaches.
| Identifer | oai:union.ndltd.org:bl.uk/oai:ethos.bl.uk:553853 |
| Date | January 2011 |
| Creators | Yin, Bo |
| Publisher | University of Aberdeen |
| Source Sets | Ethos UK |
| Detected Language | English |
| Type | Electronic Thesis or Dissertation |
| Source | http://digitool.abdn.ac.uk:80/webclient/DeliveryManager?pid=174688 |
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