Study On The Remanding Re-trial System In The Criminal Appeal Trial

The remand for re-trial system in the criminal appeal trial as an important processing result in the criminal action and judgment system of our country,its basic function is to remedy the right of the litigant,especially the right of the defendant,in order to reflect the impartiality of the judicial guarantee.As a legal system handling the judgment of the first instance from the aspect of procedure,it not only reflects the legal principle of the two-tier trial system in our country's criminal procedure,but also puts the political principle of seeking truth from facts and that the wrong will be righted into practice.Meanwhile,it is also an auditing method for the people's court at the upper level carrying out legal surveillance to the court at the lower level.Combining theory with practice,this paper summarizes the causes for the abuse of the remanding re-trial system in practice based on deep analysis of this system,and put forward the thoughts on reconstruction of this system to expect a better guidance on the judicial practice.This paper includes three main parts,which are the introduction,the main body and the summery.And the main body includes five parts.The first part introduces the legal characteristics and the procedural functions of the remanding re-trial system in the criminal appeal trial.This part from the concept and legislative stipulation of the remanding re-trial system in the criminal appeal trial,draws forth the characteristics of this system and its functions in three aspects and gives an orientation to the remanding re-triad system.The second part studies the problems in the current remanding re-trial system in the criminal appeal trial.This part points out the shortcomings and disadvantages of this system through the conclusion of several problems in the public prosecution organs and the program processing faced in treatment of the remanding re-trial cases, and deeply analyzes the contradictions between this system and the principle of the "Appeal without Additional Punishment".The third part studies the harms and causes for the abuse of the remanding re-trial system in the criminal appeal trial.This part summarizes the harms of the abuse of the remanding re-trial system in the criminal appeal trial from three aspects and gives deep analysis of the causes for the consequence.The fourth part reviews the legislative stipulations and characteristics of the western countries' remanding re-trial system.This part gives brief introduction to the legislative state of the remanding re-trial system in America,England,France, German,Japan and Italy.This part analyzes valuable experiences through summery and comparison of the two main legal systems and the contrast with our country's remanding re-trial system.The fifth part discusses the reconstruction of the remanding re-trial system in the criminal appeal trial.It claims that the reconstruction of this system should complete the remanding re-trial system not only from updating the concepts of human rights protection,procedural justice,and presumption of innocence,but also stipulating from legislation,abolishing the vague and casual principle regulations, resetting the standards for the remanding re-trial cases,limiting the times of retrial, and giving the procedural options of the civil procedures.