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Research on the Public Power of Perjury

Author: SuLeng
Tutor: ZhouBaoFeng
School: Inner Mongolia University
Course: Procedural Law
Keywords: Public power of perjury Constitutional relief Proceduralrelief Procedural sanctions
CLC: D925.2
Type: Master's thesis
Year: 2012
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In recent years, in the field of criminal judicature, those phenomena are very common, for example, public security organs and procuratorial organs conceal evidence and commit perjury. Mainly in three forms:illegal forensics of public security organs and procuratorial organs, concealment and falsification of evidence, or even prevention of a witness to testify; public security organs and procuratorial organs using illegal means, including the use of violence or other means to force the witness to commit perjury; public security organs and procuratorial organs’ falsification, such as forgery of evidence, falsification of a witness’s testimony. In the characteristic of the public power of perjury, it has double properties, that is both illegality in form and in essence. containment of public power perjury can not only realize justice and find out the facts of the cases but also can protect human right and prevent the false cases. Because containment of public power perjury is very important to protect human right and can achieve justice in judicature. So containment of public power perjury is based on three theoretical basis:those are power restriction theory, procedural justice theory, and litigation construction theory. The existence of the phenomenon of public power of perjury is mainly caused by the defects such as lack of relevant regulations in legislation, no effective judicial review in the legality of pre-trial proceeding towards prosecution acts in judicial process, the use of "centralized on the files and notes" in trial, no effective sanctions of the course towards the act of public power of perjury.British Common Law has insisted on the theory of "relief come first in right" for a long time and emphasized "the right without relief is not a right". When certain rights have been violated, the infringer can not resort to the judicial justice agencies, and also unable to obtain any effective judicial relief, then the existence of a right would be meaningless. Especially those civil rights protected by the constitution often face with the risk of violations by the national authorities. So it is necessary to establish an effective relief mechanism for the right.The problem of public power of perjury is largely related to the "assembly-line style" litigation construction of our country, so in order to get rid of "assembly-line style" litigation structure, the pre-trial prosecution procedures and judicial procedures’causal link should be completely cut off and the court trial should become the only stage which decides the final result of the case. So, in order to prevent the phenomenon of public power of perjury effectively, we should establish procedural guarantee in the aspects of pre-trial procedures, trial procedures and related relief. When the constitutional right is violated or the basic principle stipulated in constitution to guarantee the right of the accused is violated, as a criminal defendant who was encroached by the public power of perjury, has the right to entitled to an effective relief of right. It related to the problem of constitutional relief of the accused. Throughout our country, we have not established constitutional relief system. If the police and prosecutors infringed upon the defendant and his constitutional right by perjury, their acts is a constitutional infringement instead of only a procedural violation. In addition, China has not established a specialized investigation system on the violations of constitution. Therefore, China should write the defendants’ procedural fundamental right into the constitution and establish an investigation system on the violations of constitution.

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CLC: > Political, legal > Legal > Chinese law > Procedural Law > Code of Criminal Procedure
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