The Subject Matter Of Criminal Retrial To Start Research

Criminal retrial procedure as a special relief program,has played an important role in finding the truth of the case,and the necessary relief for the accused.However,China's existing legislation has inadequacies at the retrial procedure design and retrial philosophy, values,etc.The reason to start a criminal retrial procedure is the core of the criminal retrial procedure and the key to start the retrial procedures which is the connection point to start retrial procedure and maintains stability of effective judgement,and will be activated before the screening,its status and functions in the retrial procedure is very important,but the existing legislative provision is too principle,and lack of clarity and maneuverability, resulting in more arbitrary in starting the retrial proceedings,in judicial practice there have been complaints of unlimited appeal and unlimited retrial procedure,which not only affecte the stability and authority of adjudge,but also make the defendant face the risk of duplicate prosecution,and the goals of justice and efficiency are also difficult to achieve.The main problem of China's criminal retrial starting reasons stems from the basic theory defects.The reason to start criminal retrial procedure is the subject which is the result of mutual balance and compromise between more than one kinds of ideas and the values which should be made mutual balance and compromise in a series of contradictions relations:the stability of the law and veracity,impartiality and efficiency,punishing crime and the protection of human rights,etc.In this paper,the text is divided into four parts.The first part:Analysis of theoretical basis of the main reasons to start a criminal retrial procedure.First of all,starting from the value of criminal proceedings it elaborates how to deal with the two major criminal values - fairness and efficiency in the process of re-setting the criminal retrial procedure,the author believes that the establishment of the reason to start criminal retrial procedure should adhere to the principles of "just priority,giving the attention to the efficiency" and explore a dynamic balance between them,which is the only way to build our country's criminal retrial in the new development derection criminal proceedings to start a new subject system and study the purpose of criminal proceedings and the reason of starting the retrial procedure,analyze the impact on the purpose of our lawsuit and the reason to start criminal retrial procedure,and conclude that:the establishment of the reason to start criminal retrial procedure should adjust existing litigation purposes and balance the relationship between the fight against crime and the protection of human rights in order to protect the human rights-oriented.Finally,the author makes an analysis of the two basic ideas for the reason to start criminal retrial procedure,namely,the real entity,and the principle of res judicata.Reconstruction of the reason to start criminal retrial procedure should make balance between the two concepts,to contain the over pursuit of the entity truth.The second part:introduces a number of civil law countries legislative provision about the reason to start criminal retrial procedure.This part elaborates national legislative provisions about the reason to start criminal retrial procedure on the basis of a comparative analysis with a representative selection of Germany,France,Russia,Japan and China's Taiwan region.Through the inspection of the reason to start criminal retrial procedure of these countries and regions,I find that although the reason to start criminal retrial procedure of the various countries and regions are varied and colorful,each with its own characteristics,but through a comprehensive analysis I find these countries and regions also have certain commonalities.These similarities primarily show in the following two aspects:First,the reason to start criminal retrial procedure is strict.The reason to start criminal retrial procedure of all countries and territories all limited to the following three aspects:(1) The problem of false evidence;(2) to discover new facts and new evidence after the adjudge;(3) judicial officer's malfeasance crime.To start the criminal retrial procedure must comply with these three aspects of the subject,otherwise it should not start the retrial.The second is the preference values of the two reasons,the reason to start criminal retrial procedure of these countries and regions put the rights and interests of the accused or sentenced person in the first place,and in punishing crime and the protection of human rights they have clear preference for the latter.This value orientation,embodied that they has given the green light for the retrial banifit for the accused or sentenced person in the various countries and regions, but the conducive to the defendant's retrial is not allowed to bring either completely,or be limited to a narrower range.Another point to arouse our attention is that the reason to start criminal retrial procedure of these countries and regions contains artistic balance.These countries and regions select a strong value orientation which is good for the accused or sentenced person and then provides strict the reason to start criminal retrial procedure,so that the door to a retrial is carefully opening to the sentenced person and to the relief of innocent people.This in fact is the loss of res judicata and the smallest indulgence crime in exchange for sacrificing the maximum benefit and the course of justice.This ingenious design is worthy of our country to be drawing in the subject.The third part:the legislative status quo and existing problems of the reason to start criminal retrial procedure.China's current Criminal Procedure Law of 1979 are on the basis of amendments to the Code of Criminal Procedure promulgated and filed for retrial in accordance with the main provisions of the different subject.Among them,they do the list-style provisions for the reason to start criminal retrial procedure for the party,clearly define the four reasons that the parties can apply for a retrial;and make a general type for the judiciary,as long as the judiciary consider the effective sentence "there are mistakes",you can start the retrial,In addition,the provisions for the reason to start criminal retrial procedure is too broad,and hard to operating in judicial practice,"the Supreme People's court to rehear their reasons to start a retrial refinement case on regulating the number of observations(for trial implementation)" and "People's Procuratorate of the Criminal rules "have provisions separately on the courts and procuratorates.From provisions of the reason to start criminal retrial procedure the problem of the reason to start criminal retrial procedure is mainly reflected in the following areas:the provisions manner of the reason to start criminal retrial procedure is unreasonable,putting "indeed there is an error" as the subject of criminal retrial is unreasonable,concepts of the protection of human rights,the standard of the meaning of new evidence and judge are not clear,not really,inadequate and standard of proof is too abstract,lack of normative,the original decision was not sufficiently clear,the practice is not easy to operate and so on.this part start from the legislative status quo,analyses the exist problem in practice so as to providing the prerequisite subject for reforming the reason to start criminal retrial procedure.The fourth part:the reconstruction of our country 's system of the reason to start criminal retrial procedure.At the conclusion of earlier analysis,based on drawing useful experience from outside put forward the reform of the reason to start criminal retrial procedure on the legislative foundation of our country.First of all,from a macro aspect put forward recommendations for the current problems and the perfect solution to the problem; And at the micro aspect the author make it in detail,and enhance its operability.The author believes that the Reconstruction of the reason to start criminal retrial procedure should put the four reasons of the complaint appeal,together with courts and procuratorates' "there is indeed wrong" reason abolished and then re-build the uniform application of the parties and the judicial organs in favor of the defendant Finally,the author expounded related measures to improve the reason to start criminal retrial procedure.I think simply to rely on the reform of criminal retrial procedure can not solve all of the questions,a number of complementary measures necessary should beset up to resolve the many questions that exist.