The Research Of The Reform Of The Criminal Appellate Procedure In China

Criminal appellate procedure is the essential part in the criminal procedure because it bears the relief responsibility that is necessary and valuable to the right of defendant. The criminal appellate procedure has close relationship with criminal trial grade system. Because criminal trial grade system is the important carrier of appellate procedure and how the function of appellate procedure works especially what relief the party can get through appellate procedure, depend on what kind of criminal trail system the country set. Thus this paper starts with criminal trial grade system, through the investigation of criminal trial grade system of mainland legal system and European legal system and gets the common rule of the foreign criminal trial grade system and the main function of appellate procedure. Then this paper analyzes the problem about keeping or abolishing two reviews final trial system with considering our country's situation. This paper combines with the reason of setting up two reviews final trial system and the significance of legislation to put forward the remedial problem and strategy of our country's criminal appellate procedure, premised on not abolishing two reviews final trial system.The basic principle of a appellate procedure in our country includes the principle of no appealing resulting in additional punishment and the principle of complete review. The principle of no appealing resulting in additional punishment, which is one of the important principle implemented in every country's appellate procedure plays a great role in relieving the defendant's right but in the judiciary practice, it suffers obstacles from the principle of complete review an the system of remand for retrial. Complete review principle is denounced by scholars. The effective way to keep neutral in the court of second instance is replacing complete review by limit review.There is still some room for repairing the main rule of appellate procedure. First, the ways of hearing in second instance suffer impingement. The hearing model, which is taking the public hearing as the principle and the private hearing as exception was totally changed into taking the private hearing as the principle and the public hearing as the exception. If the condition is become mature, every case of second instance should be enforced to open a court session. Now the condition is not mature yet, we should extend the range of hearing by judicial interpretation and other ways. Second, the way of adjudication of second instance needs reforming, especially the system of remand for retail. Two situations of remand for retrial (procedure offence and vague truth, insufficient evidence) need refining father and the time of remand for retrial should be strictly limited as one. Third, The right of the defendant to appeal should be fully protected. Not only The power of the Prosecutor to appeal should be moderately limited, but also The period of the defendant to appeal should be lengthen.In China, the investigating and prosecuting apparatus of second instance was in an embarrassed place in the appellate procedure so we should put more attention on relative problem of theory and practice. First, the function of the examinant appearing in court belongs to the function of legal supervision not the function of accusation. Second, the supplemental investigation of the investigating and prosecuting apparatus should aims at the appeal of the fact question lodged by the party and the protest of the fact question lodged by the investigating and prosecuting apparatus, because it is the right and duty of the investigating and prosecuting apparatus to provide the new evidence by supplemental investigation. Third, the time limit of reviewing flies should be defined clearly to the investigating and prosecuting apparatus of second instance. Forth the way of reviewing flies of the investigating and prosecuting apparatus is mechanical, we could change the way more flexible in the practice.