The Research Of Repeated Prosecution In Criminal Action

In criminal action,the principle of "Non Bis in Idem" is crucially important and fundamental throughout the entire criminal prosecution and trial process."Repeated prosecution" is the typical action violating this fundamental principle during criminal action. It can bring huge harm,namely making defendant the object of the prosecution who will be under the long term judicial proceeding with depreciation and be rashly convicted,and also greatly violating the defendant's legal right of enjoying the due procedures.Meanwhile,it wastes the judicial resources,which not only greatly harms the judicial authority but also slows down the work efficiency of investigators,prosecutors and judges.In one word, repeated prosecution brings great harm to the law's fundamental value of equality,justness, liberty and order.The criminal action system of China is gradually respecting and embodying the law's diversified values,establishing the criminal action structure with priority to party control adversary system and minor assistance from court control,and laying equal stress on substantive justice and procedure justice as well as justness and efficiency.Under this great tendency,the research on repeated prosecution and the establishment and application of the system of protection against repeated prosecution will enjoy great significance and receive considerable attention from scholars.However,for historical reasons,the criminal law circle has not extended a systematical and profound research on this issue.Thus,the author chooses this exploratory theme with great challenge as the topic of the doctoral dissertation and tries to construct relatively complete and distinctive system of protection against repeated prosecution combining guarantee on both substantive justice and procedure justice on the basis of "Non Bis in Idem" principle.Divided into 8 charpters,this dissertation starts with the discussion on the concept of repeated prosecution,analyzes the classification and its relation with relevant concept in details,elaborates the regulations of the protection against repeated prosecution and justified reasons of its exceptions,then emphasizes the composition of repeated prosecution and the procedural application of regulations of the protection against repeated prosecution,and makes a comparison between exceptions of the regulations of protection against repeated prosecution of the two law systems,and finally proposes author's views on the establishment of the system of protection against repeated prosecution in China.In the first charpter,by the comparison between "Non Bis in Idem" of the continental law system and "protection against double jeopardy" principle of Anglo-American law system, the author concludes that the restriction on the repeated prosecution from the latter law system is limited,namely it can not make timely restriction on situation of "one case,two prosecutions".Therefore,the concept of "repeated prosecution" shall base on the generalized "Non Bis in Idem" principle rather than "protection against double jeopardy principle" of the Anglo-American law system.Thus,we find that the "repeated prosecution" in criminal action refers to the situation that the prosecuting party initiates a prosecution to defendant again on the same crime in the criminal action before or after the first prosecution is ended,which causes two parallel or continuous prosecutions and trials on the same case.Prosecution before the first prosecution ended is named as overlapped repeated prosecution while that after the first prosecution ended named as continuous repeated prosecution.Besides,the Procedure Guarantee concept embodied in the principle of protection against double jeopardy shall be consulted by the continental law system.Therefore,Procedure Sanction and Preventive Procedural Guarantee leading to an end are introduced into the relevant regulations of prosecution end of repeated prosecution concept.In the second charpter,the author demonstrates the regulations of protection against repeated prosecution and the justified reasons for its exceptions by two aspects,namely analysis of values and understanding on rational power accumulated in history of the system of protection against repeated prosecution through investigation on relevant principles,system development and evolution of the two law systems.Through value analysis,we find that this system plays an important role in protecting and embodying the law's economy,order,liberty, equality and justice values.Through historical investigation,we can know that the system is originated from the common concept "Non Bis in Idem" of the two law systems since the ancient Greece and Rome period.Although many different principles and systems of the two law systems were generated in the later history,they still have common points which can provide theoretical support for the consultation of principle of protection against double jeopardy and system of the Anglo-American law system.As the core of the dissertation,in the third?the fourth and the fifth charpter,the author analyzes the composition of repeated prosecution from various aspects,such as its morphosis, judgment of identity,nature of prosecution,start and end of prosecution,etc.Through the summary of criteria of the identity judgment in dominating countries and regions in the two law systems and the comparison between that of the two law systems,the author concludes that the Anglo-American law system never judges the identity merely based on the law comparison;as the same with the continental law system,its identity judgment must accord with the basic fact identity;the reason why the identity of the Anglo-American law system is narrower than that of the continental law system is that on one hand,the Anglo-American law system pays more attention to the exertion of the defendant's defending right;on the other hand,with determinant effect,the Anglo-American law system implements the jury system.Otherwise,there is no evidence for the reason why the countries carrying out the Anglo-American law system do not do the same with Japan as described in Japanese criminal procedure which preserves the wide identity range of "public prosecution identity" with adoption of "cause of action object theory" so as to guarantee the defendant's defending right as well as the demurrer interest within a broader scope.Therefore,due to the implementation of the jury system in the Anglo-American law system,if the cause of action modification in a wider scope is permitted to the prosecution,the centralized and uninterrupted judgment principle will be demolished,e.g.the interrupted judgment will exert with difficulties especially during the jury judgment.The identity criteria in the Anglo-American law system are more operable and foreseeable with obvious characteristics of formalization than that of the continental law system with the characteristics of substantiation. As for the relationship between the nature of the prosecution and the formation of the repeated prosecution,the criminal nature of the civil action among individual litigants cannot be confirmed,in spite of the civil liability confirmed by which with certain punitive nature. Therefore,the identical action with both a criminal prosecution and civil action respectively cannot cause a repeated prosecution.The disguised criminal-nature prosecution caused by the administrative responsibility will be mainly settled depending on clearing the relationship between substantive criminal law and the administrative law.As for the start and end of prosecution,firstly,the related theories in both the Anglo-American law system and the continental law system have been introduced,especially the jeopardy attached theory,and clarified some misunderstanding of the domestic scholars for the jeopardy attached theory in the Anglo-American law system.Secondly,a series of ideas on the start and end of prosecution has been come up with,which confirms the first prosecution starts with indictment and the second one starts with litigation with prosecution function,causing overlapped or continuous prosecution procedure of the prosecuting party and defendant.Thirdly,the starting point of the prosecution and the first jeopardy of the Anglo-American law system have been clarified with clear significance of the jeopardy starting point described.As for the end of the prosecution,considering the double jeopardy theory in the Anglo-American law system featuring in the advantage of paying attention to the Procedure Guarantee,the Procedure Sanction theory and Preventive Procedural Guarantee concept have been brought in;the designated date of the prosecution end before the judgment on the merits has been defined;however,due to the principle of "Non Bis in Idem",the enactment of these end points have been limited;that is to say,under the conditions of procedure merely proceeding without an end and the defendant probably obtains verdict of innocence,the prosecuting party's procedure violation,invading the defendant's procedure rights seriously can cause the end of the prosecution before the judgment on the merits.In the sixth charpter,the application of the regulations of protection against repeated prosecution in the prosecution procedure is involved.Firstly,the issue that the repeated prosecution may exist in certain sections of the procedure of criminal prosecution procedure has been discussed vertically and horizontally.It is concluded that the repeated prosecution does not exist in the phase of review and indictment in a vertical view;the repeated prosecution after the lawsuit withdrawing of the public prosecution organ in the first instance is exclusive to the person who withdraws the lawsuit because of the insufficient evidence,the new prosecution after which forms a repeated prosecution;the prosecution modification by the prosecuting party in the first instance cannot cause a repeated prosecution;in the procedure of the second instance,the demurrer of the prosecuting party to the verdict of innocence cannot cause a repeated prosecution;the "comprehensive inspection" of the court responsible for the second instance cannot be regarded as the repeated prosecution but the modification of the court responsible for the second instance to the accusation confirmed in the first instance may cause the repeated prosecution depending on the specific conditions;the new trial for a lawsuit remanded in the second instance due to the unclear facts and insufficient evidence can cause the repeated prosecution;if the repeated prosecution caused in the second instance conforms to the conditions of retrial,it can be regarded as the exception to the protection against repeated prosecution;a second prosecution after the end of the first prosecution causes the repeated prosecution.From the horizontal view,the divided prosecution will cause the repeated prosecution;the system with the coexistence of the public prosecution and private prosecution may cause the repeated prosecution as well.Secondly,the repeated prosecution regulation in accordance with the protection against repeated prosecution,the regulation to overlapped and continuous repeated prosecutions have been discussed also.In the seventh charpter,the exceptions to the rules on the protection against repeated prosecution in the two law systems were compared and analyzed.The two exceptions of advantageous retrial and disadvantageous retrial in the German law system were recommended to set up,and the "new fact and evidence" was introduced as exceptional conditions for disadvantageous retrial with reference to the reform of the British Criminal Justice Act 2003,however,strict restriction shall be exerted.Meanwhile,the author thinks that the system that the prosecution of the prosecuting party shall only be included as exceptional cases in the Anglo-American law system is not suitable for the countries adopting the continental law system,because it may break the right structure featured by bureaucratic judiciary,weaken the restriction to the exercise of judicial power of the first trial court,and conflict with the judicial hierarchy system and the functions of the continental law system.In the eighth charpter,the establishment and application of the protection against repeated prosecution rule in China were discussed.Firstly the necessity and feasibility of this rule were proved.As indicated,it is the judicial principle that "seeking truth from facts and correcting the mistake whenever discovered" causes repeated prosecution in law execution. As a result,the establishment of this rule is unavoidable with the advancing of the law system reform in China.And the feasibility of establishment of this rule in China was proved based on the inner compatibility,concept innovation,technology innovation and other aspects of Chinese traditional culture,which are displayed in the values of this rule.The author proposed some ideas and advices on application model and establishment detail of this rule,including the protection against repeated prosecution model on the basis of the "Non Bis in Idem" in the broad sense while borrowing the Procedural Sanction and Preventive Procedural Guarantee concepts from the Anglo-American law system,and opinions on setting the start and end of prosecution were also put forward.The author also stated opinions on identity criteria in three aspects.First,ideal identity criteria shall be capable of protecting legitimate interests of the defendant in terms of defense and demurrer in a wide scope.Therefore,a wide scope shall be adopted for identity,and the object of trial shall be determined based on the prosecution of prosecuting party,and can only be changed within the scope of identity by the prosecuting party if necessary during the prosecution while the court can not privately change the object of trial or sentence beyond the scope of the object of trial determined by the prosecuting party, which means that the principle of indivisibility in terms of trial shall be abolished,and the suit model of court control shall be replaced by that under the adversary system.Second,the principle of indivisibility in terms of prosecution shall be remained to avoid divided prosecution by the prosecuting party,which will be of importance when the court can only judge and sentence within the prosecution scope of the prosecuting party after the principle of indivisibility in terms of trial is abolished.Third,the author recommended the standard of judging mainly basing on the "identification of basic facts",aided by the legal review of identity in the continental law system,and a wider scope of identity shall be adopted to ensure legitimate interests in terms of demurrer for the defendant.The principle of indivisibility in terms of trial featured by court control shall be abolished to avoid divided prosecution by the prosecuting party,while the principle of indivisibility in terms of prosecution shall be maintained as the duty and responsibility of the prosecuting party on the premise of the "possibility of simultaneous prosecution".Under the cases without such possibility,if it falls into an exception to the protection against repeated prosecution,then second prosecution and trial shall be allowed.The author also brought forward some suggestions on the reform of retrial system.