Font Size: a A A

On Criminal Retrial Procedure

Posted on:2009-03-21Degree:MasterType:Thesis
Country:ChinaCandidate:J M GaoFull Text:PDF
Abstract/Summary:PDF Full Text Request
Generally speaking, the case should have certain stability once it has been passed through the judgment. But because of the complexity of the case and the limitation of people's knowledge, erroneous judgment of the case is inevitable. Therefore, the retrial procedure becomes the last barrier to protect judicial justice. Over the years, regardless of the judicial practice or fundamental research, our country has not given enough attentions to the retrial procedure. This article has three chapters, through studying the foreign criminal retrial procedure, the author tries to give reconsideration to our country's criminal retrial procedure, and put forwards several considerations to perfect our country's criminal retrial procedure.The first chapter is to study and compare with the foreign criminal retrial procedures. Through comparing the national criminal retrial procedure of the Anglo-American Legal System with Continental Law System which takes France, Germany as representative, discover that the criminal retrial procedures have universality, and the retrial procedure's lawsuit value is increasingly accepted by various countries in the world. The national criminal retrial procedure of Anglo-American Legal System is not developed enough, which is at the cost of sacrificing partial real of entity to defend referee's stability and the court's authority. The retrial system of French principle manifests the dual ideas of limiting the country to pursue the right of suit and protecting the benefit of the accused person. The retrial system of German principle carries out the real of entity principle, in order to pursue the real of the case's entity, the retrial which is advantageous to or not favor the accused person is permitted to institute, and obey the principle of not adding punishment if carry out retrials, it pursues the majority real of entities with the only limitation of not adding punishment while carrying out retrials.The second chapter is to reconsider our country's criminal retrial procedure. Our country's criminal retrial procedure exist obvious flaw from the rationale to the regulations of concrete system. Firstly, there is deviation in retrial rationale. Our country's criminal retrial procedure takes the realistically, rectify any mistake as the guiding principle, regards realizing the absolute entity real principle as the ultimate objective, which is impossible and inappropriate. From the aspect of epistemology, human's cognitive ability is limited, the entity real is ideal and in far from touch condition, if pursue partial case's truth excessively, it will affect the efficiency of the action inevitably, and influent the correct processing of more cases. Secondly, deficiency in the principle of ne bis in idem. Related legislation and the judicial interpretation of criminal prosecution in our country do not accept the principle of ne bis in idem, any judicial referees do not have the authority which not being questioned. On the contrary, to implement the ideological line of realistically, rectify any mistake, ensure that accurate and timely ascertainment of facts about crimes, punishment of criminals and protection of the innocent against being investigated for criminal responsibility, the legislation and the judicial interpretation permit the trial of first instance procedure, the trial of second instance procedure and the retrial procedure to carry on repeated prosecute and repeated trial. Thirdly, malpractice in operating the retrial procedure. There are many aspects of unique characteristics in our country's law concerning the criminal retrial procedure, but it is still imperfect and has many malpractices, for example, the Arbitrariness and randomness while starting the procedure; deficiency in Litigant's retrial applicant status; misconduct of the retrial jurisdiction's operation; the lack of feasibility in stipulating the reasons of retrial.The third chapter is to reconstruct our country's criminal retrial procedure. Before reconstruct this procedure, we should firstly draw lessons from overseas mature legislation and the judicial experience widely, establish the modern judicature idea of giving consideration to both substantive justice and procedural justice, and in the actual operation, give essential restriction from all quarters concerning the retrial so as to control in a suitable scope, causing the retrial procedure to become a real kind of Special Relief procedure.First, remold the idea of criminal retrial procedure. The reform of criminal retrial procedure must first renew the existing thought and idea. Firstly, establish the idea of giving consideration to both substantive justice and procedural justice. Do not overcorrect; perform strict restriction to the procedure's application, the institute, the reason, the condition and so on. Whether the invalidity of procedure induces the retrial procedure inevitably, we should consider comprehensively other various aspects of factor and influences. Secondly, establish the idea of taking just and efficiency into consideration. Focus on the balance of just and efficiency so as to realize the judicial benefit to a maximization degree. Scientifically frame the criminal prosecution procedure, make the integration of the proportion of just and efficiency value to a maximum idealization, namely, processing in each concrete law case should satisfies the fair request, on this baseline, keep some reasonable space for pursue of efficiency value. Thirdly, establish the principle of ne bis in idem. Absorbed by the United Nations criminal justice criterion, this principle stress the maintenance of stability in decision, extremely stress anybody do not suffer twice disadvantageous referee because of the identical behavior. Retrial is the exception of the principle of ne bis in idem, therefore retrial should be the minority unusual situation, must keep in strict control. Fourthly, establish the discriminating principal which is advantageous to the accused person and which does not favor accused person. Before starting the retrial procedure, it must establish this kind of discrimination principle. The retrial which does not favor accused person should have a clear restriction on the number of times to prosecute. Once it has been instituted, no matter the retrial of the court make what kind of judge, the procuratorial agency cannot propose retrial again on the same case. But the retrial which is advantageous to accused person may free from the restriction of number of times in the institute.Second, reform the start of the criminal retrial procedure. Firstly, reform of the retrial start concerning main body location. The principle of separation of prosecution from trial organs is one of the civilized achievements formed through the unceasing development of the human society, it reflects general principle of the judicial trial, manifests inherent rules of the lawsuit activity, so, it should obtain the implementation in each stage of lawsuit activity, the determination of retrial start main body certainly implements this principle, it must therefore cancel the authority of court to institute retrial on own initiative. Simultaneously, establish suing of the application retrial, may consider decomposing the application of retrial right, ensuring the main body of applying retrial and applying appeal. Application retrial main body should be first trial accused person or its legal representative. If the first trial accused person has died or in the limitation situation, it may be his/her close relative. The Application appeal main body is the victim or its legal representative, only then, when the victim dies or loses the meaning expression ability, its close relative may hand in the appeal application. Moreover, establish the natural status of procuratorate to start retrial. Secondly, reform of the reason of starting retrial. The reason of starting retrial should be differentiated into which is advantageous to the accused person and which does not favor the accused person. Compared with the reason which is advantageous to the accused person, the reason which does not favor the accused person must be limited strictly. Third, design of criminal retrial trial procedure. Firstly, all the retrial case should be jurisdiction under the higher level court of Magistrates Court which makes the originally effective Judge; counterplea of retrial should be in jurisdiction of the same level court as the organ which proposes the counterplea of retrial. Secondly, the retrial trial organization should act according to difficulty of the retrial, decide three to seven Judges to compose the collegiate bench. Thirdly, the retrial trial must insist on the principle of open trial, does not add the punishment relatively, to exam according to sue and the participation of the counsel.
Keywords/Search Tags:Criminal Retrial Procedure, Ne bis in idem, Perfect
PDF Full Text Request
Related items