On Criminal Retrial Reasons "New Evidence"

As the"valve"for starting the criminal retrial procedure, Criminal retrial reasons not only could balance the truth findings and the"res judicata", but also could achieve the relief of the criminal retrial procedure; it is one of the core issues in the criminal retrial procedure. Criminal retrial reasons have their own different characters because of the different values, legal traditions, and social systems in Countries around the world. However, "new evidence" is the most common reason to starting the criminal retrial procedure in most countries. Since the "new evidence" is the most common reason for criminal retrial, it will decide that the vast majority of criminal retrial cases whether are started. In other words, the "new evidence" is the most"key"to open the door to the criminal retrial procedure .Thus the "new evidence" is the scientific definition of a scientific and rational reason to set the key to the criminal retrial. In our country, "Criminal Procedure" and related judicial interpretation provide that the parties and their legal representatives, close relatives can apply according to the "new evidence", the prosecution also under the "new evidence" apply for retrial protest. In fact, many criminal retrial cases are that the parties and the prosecution apply for retrial according to "new evidence". However, China's existing legislation provision on the"new evidence"is too simple, the lack of clarity and maneuverability, theorists have not researched this issue in depth also, so there are many problems when justice workers identify the"new evidence"in judicial practice. Defining the "new evidence" is not only a focal point in the study for the reason of criminal retrial in many countries; it is a difficult point in the study. From abroad, the study situation, the rule of law developed countries for the more perfect the provisions of defining the "new evidence", the relevant theory is also more in depth. Therefore, this paper referring to the foreign-related legislation and their theory, combined with China's actual situation, this issue was discussed in detail.Except the introduction and conclusion, this paper's text is divided into four parts.The first part introduces the definition of the"new evidence"about some issues and the legal basis that the "new evidence" is one of the criminal retrial reasons. First of all, defining what is meant by "new evidence" mainly involves two aspects, one is "new evidence" of the range, the second is "new evidence" criterion, the criterion to judge the form of standards and also includes real criterion. There are their different ideas of various countries on what is the"new evidence"because of their different position and value. Here, the author just puts the definition of "new evidence" related questions, so as to make bedding for the below, namely, the comparative study and construction of China's rules of the identification and review the"new evidence". The next, the author analyzes the legal basis that the "new evidence" as one of the criminal retrial reasons. The author analyzes the legal basis of criminal retrial reasons set first, in fact, that means how to balance the contradiction between the truth findings doctrine and the"res judicata"theory by setting the reasons of criminal retrial. The balance between the truth findings doctrine and the"res judicata"theory is that we should make cases justice as possible as we can on the premise of protecting human rights fully, this is the legal basis of criminal retrial reasons set. On the premise of the legal basis of criminal retrial reasons set, the author will analyze what is the legal basis that the "new evidence" is one of the criminal retrial reasons .Criminal retrial reasons mainly include two aspects, one is following the substantive truth finding doctrine in the formation of retrial reasons, the other is following the procedure rationalism in the formation of retrial reasons. The"new evidence belongs to the former, so the legislation set that the"new evidence"is one of the criminal retrial reasons because of the substantive truth finding doctrine. Combined with the legal basis of the criminal retrial reasons set obtains what the legal basis that the"new evidence"is one of criminal retrial reasons. The standard definition of new evidence should be different according to the retrial whether to the criminal defendant's benefit. This part mainly paves the way for the following writing.The second part describes some countries'legislative provision about the"new evidence"and relative theory. The paper chooses some representative countries as research subjects, such as France, Germany, Japan and the United Kingdom. In this part, I study the foreign legislative provisions ,then based on the analysis of the several countries of the "new evidence" is defined in several issues related to different views, for the following construction and improvement China's rules and systems provide a reference.The third part introduces the status quo of identifying and reviewing the"new evidence", and analyzes the reason for this. This article analyzes the status quo of identifying and reviewing the"new evidence"from the legislative level and the level of judicial practice. Legislation, China's"Criminal Procedure"and related judicial interpretations provide the"new evidence"only a few words, the lack of clarity and maneuverability. Judicial practice, this paper mainly through the analysis of the retrial cases reached a certain number of "new evidence" in the specific application problems. Finally, the legislative and judicial practice, the reasons for these problems conducted in-depth analysis.The fourth part is the focus of this paper. At the conclusion of earlier analysis, based on drawing useful experience from outside and known the status quo of identifying and reviewing the"new evidence", the author puts forward the construction of the rules of identifying and reviewing the"new evidence"and the perfection of related systems on the legislative foundation of our country. First, eliminate errors from the higher level thinking, that is to improve the guiding ideology of China's criminal retrial. Second, the criminal retrial reasons need re-classification, the criminal retrial reasons should classify in accordance with whether it is of advantage to the accused. On this basis, constructing rules of identifying and reviewing the"new evidence"from four areas, such as the range of the"new evidence , the criterion of the"new evidence",the restrictions of the"new evidence"that is brought against the accused in a retrial, and the rules of reviewing the"new evidence". Relying solely on the construction of the rules cannot solve existing problems. We must improve the review of the criminal retrial procedure and the system of responsibility-for-wrong-decision of misjudged case to make the rules implemented. So finally, the author improves the review of the criminal retrial procedure from the subjects and the review process, and puts forward some views on how to improve the system of responsibility-for-wrong-decision of misjudged case.