Full text of the paper:
Collected Papers of the Faculty of Law, University of Novi Sad
2017, vol. 51, No. 3 – 1, pp. 909–923
Language of the paper: Serbian
Original scientific paper
udk: 343.1:141.13
doi: 10.5937/zrpfns51-15014
Author:
Miloš Galić, Ph.D. Student
University of Novi Sad
Faculty of Law Novi Sad
milosgalic91@yahoo.com
Abstract:
A man encounters with the world with mind that represents to reach the truth about objective reality. Subject, aiming to know the reality, can get to many results, looking at it from different aspects, from which all of them can be logically correct, but only one can be truthful. Author in his paper presents criminal procedure from the aspect of Fichte’s subjective idealism. In this paper, we analyse dialectics of subjective idealism first, that is composed of three elements, thesis (consciousness of the subject about itself), antithesis (objective reality), and synthesis (qualitatively subjective knowledge). Due to inability to discover the absolute truth, subject comes to the most accurate result about a fact by consent with other subjects, meaning by consensus. In order to reach the truth about causa criminalis, the roles in criminal procedure must be divided among three different subjects. From the aspect of subjective idealism, the elements of criminal procedure are divided by the principle of division in three roles, defense (thesis), accusation (antithesis), and knowledge of the court about causa criminalis (synthesis). Only the principle of division in three roles presents the correct form of discovering the truth and secures the proper application of the law. Author reaches the conclusion that this principle is the most correctly applied in the mixed system of criminal procedure with an overview of flaws of accusatory and inquisitorial procedure. Used to lead to procedural justice, the principle of division in three roles is subjectively determined which makes it imperfect due to that fact it remains an open question, whether or not it is possible to reach procedural justice or it is just an imaginary ideal which the subjects of the procedure aim to reach.
Keywords:
criminal procedure, thesis, antithesis, synthesis.