Research On The Principle That One Case Cannot Be Treated Again By The Court

One case cannot be treated again by the court is a cardinal principle in modern criminal procedure and has been established in judicial systems of many countries. Establishment of this principle in the criminal procedural law reflects one country's condition of the human rights and the level of the legal system. This thesis tries to discuss this principle comprehensively and carefully. The author re-examines the basic theory of this principle and points out that we should change the thought and improve the legal system according to the conditions of our country and establish this principle in the criminal procedural law. This thesis includes four chapters.Chapter One The concept and establishment reason of the principle that one case cannot be treated again by the court It is necessary to define the concept in order to discuss this principle. The concept is divided into broad sense and narrow sense by the academic circles of science of law. Through inspecting the historical development, the author finds that this principle includes two levels of content in the ancient Roman period. In modern society, the civil law and the common law inherit and develop this principle differently, but they all require that one case cannot be treated again in essence. Though the civil law emphasizes that the judgment cannot be changed after it has been definite, the common law emphasizes that this principle can work during the trial. So in modern society, this principle has also two levels of content. The broad sense reflects the requirement of this principle, and we should adopt it.The principle that one case cannot be treated again has been handed down since the ancient Roman period. There is the inevitable reason for its existence. In slave society, the judgment was looked as the order of the deity, so the judgment was forbid to be changed. In feudal society, being afraid of the power of the emperor made this principle continue existing. In modern society, because people start to respect the human rights and procedure, the value of this principle is re-emphasized .The principle takes on a new look. Chapter Two The main content of the principle that one case cannot be treated again by the courtThe right subject of this principle is the same defendant in the two procedures, while the duty subject is being discussed by the scholar. Because this principle means that one case cannot be prosecuted and tried again, many people are restrained by this principle. The author thinks that the duty subject includes prosecutor, judge, litigant and others. How to define the object of this principle is another difficult problem when people apply this principle. The author thinks that "The Same Elements Test" adopted by the United States is of little value to the countries that haven't the division of the felony and the misdemeanor. "The Same Offence Test" adopted by France is liable to violate the human rights. "Same conduct" is a good test and it can protect the right of the defendant.There is a different requirement about the range of the time between the civil law and the common law. The civil law requires that after the judgment is definite, the principle begin to work, while the common law requires during the trial.Because there are many factors that influence the judge's decision, the judgment having been definite may be wrong. Many countries establish the criminal trial supervision procedure in order to protect the realization of the justice. Though the criminal trial supervision procedure is integrated in civil law, this procedure is not systematic in common law. The civil law and the common law are careful for the establishment of the criminal trial supervision procedure and pay attention to the human rightsChapter Three The value of the principle that one case cannot be treated again by the courtThis principle is positive for the substantive justice. The judicial officer is prevented from prosecuting and trying the same case again, and they must work hard to improve the quality of the job. This...