A Research Of Criminal Retrial Procedures

This article has researched several issues in China's criminal retrial procedure.In the process of comprehensively advancing rule of law,the ordinary procedures in China's criminal proceedings have been improved by judicial reform and legislation.Generally speaking,due process has been established that meets the requirements of human rights protection and judicial justice.However,there are still some problems and shortcomings in the criminal retrial procedure,which need to be carefully studied and improved.The criminal retrial procedure is related to the stability and fairness of the law,as well as to the pursuit of multiple values such as right relief and error correction according to law.The process of launching the criminal retrial procedure and its operation is the process in which the multiple values are played against each other and weighed.Judging from Chinese judicial practice,the basic value orientation of criminal retrial is to maintain the unity of effective adjudication authority and to rectify errors according to law,which is mainly manifested as limited retrial.Limited retrial is not to treat retrial as a special trial level,nor to prohibit retrial,but to delimit the retrial to standardize and guide the retrial appeal.The criminal retrial procedure in China is consistent with the foreign principle of "Non bis in idem" and "Prohibition of double jeopardy".Although the spirit of restricting criminal retrial is the same,there are still many differences.Some of these differences should be adhered to and some of them need to be changed.The principle of China's criminal procedure law on restricting criminal retrial is not very clear and the correction function of criminal retrial is not ideal.This phenomenon limits the effectiveness of criminal retrial procedure in some extent.As a consequence,on the one hand,we must further deepen our understanding of the principle of "Non bis in idem" and "Prohibition of double jeopardy".On the other hand,we shall think about the Chinese criminal policy and traditional thinking methods of people.At the same time,we must further improve the existing specific principles such as the principle of retrial without additional punishment.In light of China's reality,we will continue to promote innovation in criminal retrial procedures with Chinese characteristics.The design of China's current criminal retrial procedure is also strongly authoritarian.Although there are many ways to initiate criminal retrial,in theory,whether it is the parties to the case,outsiders,or the public prosecution or judiciary,can trigger the criminal retrial procedure,but in practice,some of these channels are unblocked and some are blocked.of.According to the current regulations,the procurator and judiciary can freely initiate criminal retrial in accordance with their powers,and the petitioner has neither the right to directly initiate the retrial,nor the power to force the procurator and judiciary to initiate.The role of the petitioner act just as a resource which procurator and judiciary can obtain case information or sources of clues.At the same time,at present,we do not distinguish whether the reasons for the initiation of criminal retrial is beneficial to the defendant of the original trial,and there is no difference in the criteria for the review and determination of different retrial reasons.There are also some deficiencies or gaps in the regulations,jurisdiction of criminal retrial cases and the level of criminal retrial which restrict the role of the criminal retrial procedure.The author believes that in the process of reforming the criminal retrial procedure,it is necessary to provide the petitioner with clearer and more concise judicial guidelines by improving the provisions on the jurisdiction of the criminal retrial and the determination of the trial level;it is necessary to strictly limit the judicial judiciary to initiate adverse retrial against the defendant of the original trial.The law should give the petitioner a more rigid right to appeal and ensure that the criminal retrial procedure can give enough space to its multiple value functions.From the specific provisions of the criminal retrial procedure,there are some seemingly insignificant issues that actually have a great impact.For example,there are no provisions on the number of criminal retrial procedures and the period for appealing retrial applications.The situation shows that some typical cases often cause disputes and criticisms.The number of criminal retrials and the deadline for appealing a criminal retrial are unlimited means that in theory,any effective ruling may be overturned by the criminal retrial procedure at any time and continuously,and the process of criminal proceedings may never end.Though it almost never appears,this theoretical "possibility" will still cast a shadow on the verdict of effective judgments and rulings.If the concerned parties are worrying about that any effective ruling may be overturned,the stability and authority of the law will not be established.In addition,in every lawsuit,the outcome of the trial is often damaged one side and benefit the other side.If the case can be re-examined without restrictions or the limitation for initiating re-trial is very low,the party with the damaged interest will naturally have the tendency to continuously seek re-trial to gain benefits.This is one of the important reasons that lead to repeated appeal and long-term appeal in many cases.The direct consequence is that a large amount of judicial resources is wasted in handling meaningless repeated appeals,which affects other normal judicial activities.Another example is the issue of state compensation in criminal retrial.In the existing provisions of the National Compensation Law and some other related judicial interpretations,for criminal retrial cases,the parties must be entitled to apply for state compensation for cases that have been acquitted after retrial.Obviously,in practice,it is not conducive to the protection of the claims of some parties in wrongful cases.Those who have misjudged such cases as sentenced felony punishments to misdemeanor or sentenced obvious improper punishments,the defendants have suffered judgments and punishments that they should not bear but cannot obtain the corresponding compensation.It is obviously difficult to say fairness and justice.What's more,this deficiency of state compensation may also have an adverse impact on the actual trial results of individual criminal retrial cases.The number of criminal retrials,period limitation,state compensation in criminal retrials,and other gaps or deficiencies in similar laws and regulations are already quite realistic and urgent issues.They are necessary to improve and develop China's criminal retrial procedures.One case is better than a stack of documents.Judging from individual cases,the problems in criminal retrial procedure in practice are more prominent.This article has conducted a comprehensive analysis of the case“???????????”,and the understanding and thinking of this case is actually the origin of this article.In Sun's case,the relevant judicial staff members used the criminal retrial procedure to arbitrarily revoke the original effective verdicts and to re trial the defendants in a wrong way based on their inappropriate understanding of criminal policies.In the process,the retrial procedure failed to correct mistake or supervise the procedure.Improper use of it has turned an error-correcting procedure into an accomplice in creating a wrong case.Although only one case,it involved numerous defendants-a total of 16 defendants;involved many case facts including 16 crimes,26 criminal facts and 12 other illegal facts;a long time span—lasted 21 years from the first criminal facts to the Supreme People's Court's retrial in accordance with the law;the litigation procedure was complicated—including the effective verdicts of the four basic people's courts,and the subsequent revocation of the aforementioned rulings,the criminal retrial of the case by the Intermediate People's Court and the High People's Court until the final trial by the Supreme People's Court,during which all or part of the case continued to circulate between the multi-level prosecution and legal organizations.The complexity is really rare.Based on such characteristics,many real and procedural issues worthy of attention and in-depth study were exposed and generated in this case.As far as the criminal retrial procedure is concerned,it involves many aspects including the correct grasp and understanding of criminal policy,withdrawal of prosecution in criminal retrial,additional punishment in disguised form during criminal retrial,and repeated prosecution in retrial.These issues are Rarely mentioned in theoretical research.Case study can provide a large amount of front-line thinking and wisdom for the jurisprudence,which deserves the attention of theoretical research.Criminal retrial cases similar to those mentioned above are occurring and will last occurring in China's judicial practice.How to prevent criminal retrial procedures from becoming a means of creating wrong cases is a key issue that theoretical research should focus on.