Research Into Criminal Retrial Starting Procedure

Criminal retrial starting procedure is a set of rules that the people's courts and judges should be followed as they decide whether or not accept a retrial case when the parties and state organs concerned which enjoy the right for applying bring a retrial request to the people's court referring to law cases being restricted by judgment in operation. As a kind of relatively independent procedure, criminal retrial starting procedure, characterized with its own particularity and contained fierce value conflict, is the activity of examination of both procedure and substantiality .With age-old history in our country , the establishment criminal retrial starting procedure is the embodiment of dialectical materialism epistemology , right almsgiving theory , authority restriction theory , human rights guarantee theory , litigious right theory and pursuing substantial just in the criminal suit.In the legislation and actual judicial practice of typical west law-ruled countries , there are some restrict for starting a retrial and rigid accepting and hearing and examining procedure what are useful for perfecting our country retrial procedure. Current starting retrial procedure of China certainly plays positive role in vindicating judiciary authority, maintaining social stability, defending the law unification, as well as ensuring interested party right aspect. Of course, it is not desired in all fields. In the field of the guiding ideology, starting the main body, reasons to starting a trial, time and domination to start a retrial, criminal retrial starting procedure still lies shortages,must be perfected.Combining justice practice of our country actual, absorbing excellent tradition of history and using for reference experience abroad, we can perfect our retrial starting procedure in several aspects. Firstly, the guiding ideology needs diversify. Except pursuing entity justice and correcting unjust judgment, we should give consideration to such principles, such as procedural justice, attacking crime while protecting human rights and no one should be twice harassed for the same cause, etc. We should carry out finite retrial, formally appeal and benefit balance principle in perfecting retrial starting procedure. Secondly, we should build up the mechanism of starting retrial by application, reserving investigating and prosecuting apparatus starting retrial through prosecutorial protest, and restricting court starting retrial. Thirdly, we should consider both procedural mistake and substantial mistake, considering the reasons beneficial to defendant and unbeneficial to defendant. We should restrict unbeneficial reasons to defendant severely. Fourthly, we should build procedure of formal examination of registering division and essential examination of supervision division to examine retrial cases. We ought to protect the openness, transparency and sufficiency of procedure. Fifthly, retrial that is unbeneficial to defendant should be starting only one time, avoiding abuse of country penalty right and avoiding instability of law status of defendant. Beneficial to defendant's retrial should start two times of retrials in order to embody protection human rights sufficiently. Finally, we should build up withdrawal system of court that worked out judgment in operation and cancel grass-roots court right of administering retrial case. The criminal retrial case should be accepted and heard by court next higher to the court of first trial.