Study On The System Of Sending Back For Retrial In Criminal Procedural Law

In Chinese criminal procedures, the sending back for retrial system is simple, it is uncertainty in practice, and it tends to be increase . The system may bring on circulation trials, cause the decline of trial efficiency, ignore the remedy of the related parties ( especially the defendant) and what's more seriously, it may retard the implementation of the aim of the establishment of the retrial procedure. This brings many problems on executing in practice, and it has already influenced the harmony of the society, both government and public have paid great attention to it.So, it is essential to deepen the understanding theority of sending back for retrial procedure and provide legislative suggestion on how to build up the system more perfectly and scientifically.First of all, the text provides the author's definition,characteristics and function about the procedure of sending back for retrial, describe its current apply situation, definitely point out existing blemish, and it needs a further modification to perfected. The method of comparison is applied to study in correspondent experience generality in western countries and a concrete analysis is made to provide reference in reconstruction our sending back for retrial system. Then combing the demand of the reality, its theories foundation is analysised. For long time we insist that guilty must be punished, which over-emphasizes the fair value, but neglect the balance with the efficiency value, Moreover, our severe punish culture tradition think punishment greater than protection human rights, which can't adjust the modern legal development current of guarantee human rights". The paper point out definitely the existing defect in our procedure system about the rough contents and vague standard problems, which causes applying uncertainty, extending judgment period, and the escorts term postponed infinitely with judge term, and which all severly violated the concerned party's right. At last, it provides preliminary suggestions on how to reform the current procedure of the sending back for retrial system in China. As follows it must re-assurance the legal condition of sending back for retrial, standize and limit its use. And the related litigation procedure and the judiciary must be reformed, the detention in pending case should be examined and managed, constitution option should be set out when sending back for retrial; accepting the review should use the first ordinary procedural and trial in course as re-appealed;the number of times should be strictly restricted, the reviewing scope should be limited with appeal and the option of the party concerned and reasons should be publiced in award, it should bd abolished about sending back for retrial in re-trial and review of death sentence procedural.In the foundation of summarizing the formerly result and comparing abroad retrial system, the writer analyzed the necessity and possibility of reconstruction our sending back for retrial system. From the realistic stituation, the writer puts forward some suggestions to perfect and reform sending back for retrial system in criminal procedural law. Regulating the sending back for retrial system,upholding the legal rights of the defendant's, appropriatly balancing the efficiency and affair value,all those are closely relate to realize the justice and legal function,and are foundation of establish a harmonious society.