Font Size: a A A

Comparison And Reference: The Criminal Proceedings Of The Third Instance

Posted on:2006-04-30Degree:DoctorType:Dissertation
Country:ChinaCandidate:Z Y NiuFull Text:PDF
GTID:1116360182972564Subject:Procedural Law
Abstract/Summary:PDF Full Text Request
With the proceedings of society development and judicial reform, the design of criminal hierarchy of our criminal procedure exists so many faults which need reforming right now. The field of theorical research, which research roads totally focus on rational introspection on Two Instance, and on this basis, give some the construction of criminal proceedings of third instance. However, need the judicial reform really the reform of our criminal hierarchy? Have our criminal hierarchy the value of system reconstruction? Have our judicial system enough environment and resources to reconstruct the criminal proceedings of the third instance. So many questions have not been included in theorical research. This actually cannot accord with the need of our reform of criminal hierarchy. Therefore, the author wants to straighten out the development and tendency of the system of modern criminal hierarchy, and finds the general rule of construction of the criminal proceedings of the third instance, and give some advices for our criminal judicial reform.Except introduction and conclusion, the paper has five chapters, about 190,000 words.In the introduction, the author firstly discusses the value of therocial research on the criminal proceedings of the third instance, and he gives the definition of the criminal proceedings of the third instance. On the basis, the author discusses the basic characters of the criminal proceedings of the third instance. And the author introduces the therocial method.In the part of the foreign inspection, the author firstly inspects the formation of the criminal proceedings of the third instance in Roman law. In the history of Justinianus I, the appeal trial just has two times, but the final judgment is given by the third instance. And at that time, the function of the system of the criminal proceedings of the third instance is to end the final trial stage and limit the times of appeals. It has not modern function of trial specialization. And the author inspects the formation of the modern criminal proceedings of the third instance in the field of France, Germany, Russia, The United Kingdom, The United States and Japan, and on this basis, the author concludes that the formation of the modern criminal proceedings of the third instance is the formation of the modernation of legal system, and the criminal proceedings of the third instance has been generally existed as the appeal trial, and every countries provide system protection for the operation of the criminal proceedings of the third instance.In the part of the jurisprudential discuss of the criminal proceedings of the third instance, the author firstly discusses the modern procedural cognitions of the respction of procedural litigants, protection of human rights, and procedural justice. On this basis, the author discusses the basical principles of the construction of the criminal proceedings of the third instance, that is the principles of value balance, the principle of power control, the principle of function diversion and the principle of right relief, and discusses how to follow these principles with the criminal proceedings of the third instance and the system of judicial hierarchy. Finally, in the comparison of the appeal trial, the author discusses the function of the criminal proceedings of the third instance. The function of the criminal proceedings of the third instance has two pats, one part includes the direct function of right relief and public protection, the other part includes the indirect function of procedure control, judgment authority and judicial independence.In the part of the comparison of the operation of the criminal proceedings of the third instance, the author comparates the operation of the criminal proceedings of the third instance of rule-of-law countries.The author fmd.s that the cause of beginning the criminal proceedings of the third instance is strictly limited, butmethods which these countries used are different. The form of the criminal proceedings of the third instance as the appeal trial is also strictly standardized, but the litigants have the right to decide to appeal or not. The qualification of the litigant to. begin the criminal proceedings of the third instance is strictly standardized, but the litigants who have the right to begin the criminal proceedings of the third instance. The inspection of the beginning the criminal proceedings of the third instance are in many ways, but the inspection power is centralized. The trial of the criminal proceedings of the third instance has great power, but the form of judging is democratically centralized. The range of trial is limited by the appeal of the litigants, and the trial procedure is much easier than the appeal trial. The trial is mainly done by copies, and gives essential protection for the litigant's procedural right. The form of judgment of the criminal proceedings of the third instance is united, but specific conditions are different. The conclusion of judgment is the final judgment, but it cannot restrain the appeal litigants all. The author dividedly discusses the differences.In the part of the condition of the criminal proceedings of the third instance in China, the author dividedly discusses the ancient times of criminal appeal system, the modem times of criminal appeal system and the present criminal appeal system. The ancient times of criminal appeal system undergoes non-order appeal to non-limit appeal. And the reason why the criminal proceedings of the third instance is not formed, is connected with the method of country-control and judicial tradition. The modem times of China's criminal proceedings of the third instance is the result of legal transition passively. Its formation was always criticized, and the procedure was not legal trial. To the operation of the modem times of China's criminal proceedings of the third instance was not ideal as what expected. The author comparates the criminal proceedings of the third instance of mainland and Taiwan, and discusses the reason why the criminal proceedings of the third instance was abolished by legislation. And the author discusses nowadays view of negating the criminal proceedings of the third instance.In the part of reconstruction of China's criminal proceedings of the third instance, the author discusses the rationality of China's criminal proceedings of thethird instance, and finds that, reconstruction of China's criminal proceedings of the third instance is the need of the reform of the system of the judicial hierarchy, the reform of procedure of death penalty, and is also the need of construction of judicial precedent and abolishment of asking the case for instruction. And the author focuses on the reconstruction method of China's criminal proceedings of the third instance, and finds that we need refer rational rule-of-law countries' criminal proceedings of the third instance, choose step-by-step method to construct varied criminal hierarchy system.In the conclusion, the author discusses and gives some advices of the reform of the sumper court.
Keywords/Search Tags:proceedings of third instance, judicial hierarchy, law trail, suit idea, three instance
PDF Full Text Request
Related items