Research On The Reform Of Criminal Retrial Procedure In China

Criminal retrial procedure is a relief procedure for wrong judgements inorder to resolve the conflicts between the certainty and authenticity of thejudgement. Criminal retrial procedure relates not only to the stability andfairness of the judgement, but also to the client's rights. There are so manyproblems in the concepts and material provisions of criminal retrial procedurein China that the procedure can not function effectively. The article putsforward a lot of suggestions on the reform of the criminal retrial procedure onthe basis of comprehensive analysis of criminal retrial procedure in Chinaand appropriate use of the provisions of other countries.The article is composed of four parts.Part One is heoretical analysis of Criminal retrial procedure. Criminalretrial procedure is closely related to the principle of non bis in idem, and it isalways an exception of the principle of non bis in idem from the beginning tonow. The principle of non bis in idem emphasizes the finality of theprocedure and requires that a trial procedure makes a final conclusion. Theprinciple of non bis in idem is not only a legal principle but also a rule ofhuman rights. It aims at the state prosecution and protects the rights ofcitizens especially the accused by preventing the abuse of the state'sprosecutive power. The value of criminal retrial procedure includes justiceand efficiency. Justice is the eternal goal for human being. The justice valueof criminal retrial procedure comprises internal value and instrumental value.Internal value means that the retrial procedure has its own independentintrinsic outstanding qualities and instrumental value refers to the protectionfor achieving justice. The efficiency value requests that the retrial procedureutilize judicial resources to the smallest extent, while dealing with the mostcriminal cases as soon as possible. Sometimes there are conflicts between thevalue of justice and efficiency. The author believes that the design andoperation of criminal retrial procedure should maximize the efficiency oflitigation in the premise of insisting on justice as far as possible.Part Two focuses on foreign criminal retrial procedures. France andGermany is the representative of civil law countries. French criminal retrialprocedure includes two kinds of procedure. The procedure of repeal of theoriginal judgement mainly corrects errors of law application and retrialproceeding corrects factual errors. In France, the retrial must be favorable tothe accused. In Germany, both the retrial for the accused and the retrialagainst the accused are allowed. It makes a distinction in the reasons betweenthe two conditions. In Germany, the retrial against the accused has more strictrestrictions. In contrast to civil law countries, common law countries do notset up a special criminal retrial procedure, but take some special remedies tocorrect wrong judgements besides the procedure, such as habeas corpus, thewrit of certiorari and prohibition. Russian criminal retrial procedure isdivided into supervisory review proceedings and resuming criminalproceedings for the new or newly discovered circumstances. The formercorrecting errors of law application applies to cases of conviction and mustbenefit the accused. Whether innocent or guilty verdicts can apply to thelatter correcting factual errors. The retrial is unnecessarily in favor of theaccused.Part Three is comprehensive analysis of the actuality of criminal retrialprocedure in China. Criminal retrial procedure in China considers theprinciple of seeking truth from facts and correcting errors absolutely asguiding ideology and regards absolute entity reality as the ultimate goal.Although the concept embodies the value of justice, it would neither bepossible nor appropriate as to the criminal practice. The criminal retrialprocedure in China built on the concept must exist many problems. It violatesthe most basic principles of litigation that the court initiates the retrialproceedings on its own. The reason of retrial is too vague. The appeal isdemocratic right not litigation conduct for the parties. The provision ofappeal reasons is unscientific and the handling procedures for appeal are notcanonical. The retrial application and appeal are both unlimited. Criminalretrial procedure in China has so many problems that some scholars haveadvocated Three Trial Final System can replace the retrial procedure. Theview is unscientific. In fact, the presence of criminal retrial procedure hasprofound historical background and realities demand. It is not optional foil,and it cannot be easily abolished neither now nor in future. Criminal retrialprocedure must be reformed. In recent years, China has begun doing manyuseful research both the judiciary and academia, which has laid a goodfoundation not only for the change of people's ideas but also for therebuilding of retrial procedure.Part Four is the core component of the article. The author puts forwardmaterial suggestions about concept update of criminal retrial procedure, thestart and the trial of criminal retrial procedure. Criminal retrial procedure inChina must break through the shackles of traditional concept and introducesnew ideas, such as human rights protection, the theory of res judicata, thedoctrine of relative reality, efficiency value. In the premise of updating theconcept, we start to re-establish the criminal retrial procedure. In retrialstart-up procedure, the legislation should abolish the power of the People'sCourt to initiate a retrial proceeding on its own, including the discovery oferrors itself and retrial according to the higher court's instruction, perfect thepower of the People's Procuratorate to initiate a retrial, transform criminalappeal for the parties to retrial litigation, unify the reasons for the parties andthe People's Procuratorate to initiate a retrial which are further detailed andmake the period and times of retrial more clear. In the retrial inquisitionprocedure, the level of the retrial court should be raised, which can ensure thequality of cases and conform the parties' wishes while not increasing thehigher court's burden. The retrial should trial in public, which is not onlyconsistent with the fundamental principles of litigation but always useful.Retrial procedure should apply First Trial Final System, which means oncethe retrial decision is made, it effects immediately. The author disagrees thereform in three parts now. If the condition becomes mature, the reform canconduct. First, the retrial is divided into retrial for the accused and retrialagainst the accused. Second, the retrial reason for two different conditions isdifferent. Third, errors of fact and errors of law apply different retrialprocedures.The reform of criminal retrial procedure in China is a complicatedproject. It cannot accomplish soon. Because any reform of the procedure andsystem is not only the result of themselves improvement, but also the resultof improvement and function of relevant systems and rules.