The Reformation Of Procedure Of Second Instance In Criminal Process

As a general redress process, Procedure of second instance is an independent part in criminal process, and a most important part in the whole process. It has serious significance to clarifying the facts of cases, and correctly applying law, and vindicating the judicial authority, and also guaranteeing the rights of parties. Because the provisions about procedure of second instance in criminal process in our law are too simple, and the relevant judicial interpretations are not definite enough, also with the aberrancy of legislation guidance, there arise many problems in both the static rules and the dynamic operation about procedure of second instance in criminal process. Correspondingly, there are so much needed to be improved. On the base of realization of impartiality, this article starts from the essential status of criminal process in our country and judicial practice, and bases on recognition of the procedure of second instance in criminal process as the final process, firstly analyses the value foundation of the system construction of the appeal procedure in criminal process, then briefly describes its functions, and then discusses the basic character of the appeal procedure in criminal process, and then discusses particularly the problems of the procedure of second instance in criminal process in legislation and judicial practice, and at last, this article makes some suggestions on improving the system against current problems.The test includes three parts, considering respectively the value base and systematic function of the procedure of second instance in criminal process, and the traits and flaws of the current procedure of second instance in criminal process, and some material improvements.Part 1 above all considers the construction of the value base of the procedure of second instance in criminal process , and concludes that the foundation of the procedure of second instance in criminal process lies in impartiality and efficiency, which also should be the value base of the improvement of the procedure of second instance in criminal process. when considering the functions of the procedure of second instance in criminal process , it concludes that the process should be with such functions: redress of rights, and unification of application of law, and process control, and correction of errors.Part 2 discusses the main traits and flaws of the procedure of second instance in criminal process. Starting from the law text, this article concludes that the traits of the appeal procedure in criminal process are mostly three aspects: completely examination; intense color of authority of the court; and the collective construction is reexamination. The flaws are mainly summing up to such five aspects: the impracticability and formalization of the procedure of second instance in criminal process, and the complete examination runs afoul of the basic reason of criminal process; and the principle of no extra punishment for appeal cannot guarantee the rights of the party fully; and the system of reexamination has no procedural sanction; and there is no procedural redress of rights of the party. Simultaneously, this article makes some elementary analyse of the reasons of the flaws.On the bases of prior analyse, part 3 concludes that the procedure of second instance in criminal process should be perfected as soon as possible, and in combination with the current flaw of the procedure of second instance in criminal process, it provides relevant countermeasure and suggestions.