Improvements In The Criminal Retrial Procedure And Perfect

The thesis includes seven parts.I. Introductory. Criminal retrial procedure is a special relief procedure. However, the current Chinese criminal retrial procedure is not going well due to some deficiencies in the criminal procedure system itself and some misunderstanding of the value of this procedure. As a result, it has become a pressing need to improve and reform the Chinese criminal procedure by way of studying the successful experiences of some foreign jurisdictions and the domestic situations in China.II. The development of criminal retrial procedure. The criminal retrial procedure came into being as the criminal procedure system develops, and it follows a way from a simple procedure to a complicated one. In continental law countries, most of those jurisdictions have advanced criminal retrial procedure. France and German are good examples of them. In common law countries, though they don't have so-called "criminal retrial procedure", they do have some relief procedures to correct wrong judgment which function as the criminal retrial procedure. In China, we followed the tradition of continental countries and developed our own criminal retrial procedure.III. The theoretical foundations of the criminal retrial procedure. Li my view, the criminal retrial procedure rests on the following four theoretical foundations: First, the principle of Non Bis in Idem and justice. Usually, the criminal procedure of a case is terminated when an effective judgment is given. However, in some cases, the principle of Non Bis in Idem has to be ignored for the justice of criminal procedure. Second, respecting facts and correcting all wrong. Respecting facts mean respecting the laws of nature, which in the criminal retrial procedure means respecting the laws of the criminal procedures itself. However, if the principle of respecting facts is strictly followed, it may be not easy to completely carry out the principle of correcting all wrong in the criminal retrial procedure. Third, the justice of result and the justice of procedure. Just procedure is an indispensable means to obtain just result in criminal procedure. However, the procedure itself has its internal value. In criminal procedures, the justice of result is always regarded as the most important, and this helps to find out the truth of cases and ensure the justice. On the other hand, however, this undermines the justice and stability of criminal procedures. Li view of this reason, the justice of procedure shall not be ignored in criminal retrial procedure. Forth, justice and efficiency of criminal proceedings. Justice and efficiency are two important principles of criminal proceedings. Thereafter, when two principles conflict, justice shall prevail. In criminal retrial procedure, efficiency is, to some degree, sacrificed for the purpose of justice, but this should not be interpreted as that justice should be seek indefinitely without considering efficiency of criminal retrial procedure.IV. The function of criminal retrial procedure. The function of criminal retrial procedure lies in the following five aspects: first, a trial over final instance; second, interest equilibrium after the final instance; third, ensuring the consistency of law enforcement; forth, protecting the legitimate interests of defendant and the victim; fifth, improving the judicial independence.V. The starting of criminal retrial procedure. The subjects who have rights to start a criminal retrial procedure should be persons who have interests with the outcome of the criminal proceeding including the defendant, the victim and the people's procuratorate. However, the court should not be one of such subjects.The procedure law should specify the legitimate reason for staring the criminal retrial procedure. This not only makes clear for the defendant and the victim whether and when they can start the procedure, but also helps the people's procuratorate and the court to inspect the appeal of the defendant and the victim.As to the deadline for starting a criminal retrial p...