On Retrial Of Criminal Proceedings

In the modern legal society, the effective judgment which is trialed by court according to law, is the country for the authority to determine disputes. Whether it is country, or the defendant, or as a judge of the court and the public should respect the judgment. Unless in exceptional circumstances, or we should not start the proceedings again. Only in this way, we can limit the national power and protect the human rights effectively. And the administration of justice has credibility. The system of criminal proceedings ought to improve the procedures and results, to tell the accused, victims and even the public that the case has been declared "final end". So it can restore the state of peaceful society. In pursuit of the stability, the legal limit the case re-entry into the trial proceedings as far as possible. At the same time, the defendant should be protected from disturbing in a long-term status. This is the basic requirement of the rule of law. Criminal retrial procedure means a procedure which the court re-trial a legal effective decision for its errors. It is a special procedure for the wrong case. Criminal retrial procedure is the last line of defense of the criminal justice. The status of its operation is directly related to the stability of the court's enforce decision, the fairness of the national right penalty, and the protection of legitimate rights and interests of litigants. However, when the trial has errors, the stability and the fairness of law will conflict. So we need to value measure between them. The Chapter V of current Code of Criminal Procedure sets out procedures for trial supervision, and its main content is retrial procedure discussed in this article. However, the starts of procedures only depend on the standard "there is an error indeed ", which is general and the lack of interoperability. It shows that is the administrative review. With the great idea "seeking truth from facts, mistakes must be corrected", legislators set up the guiding criminal retrial procedure. But in the judicial practice, they are often unable to carry out. The mains are over-diversification, the reasons broader, the state power is expansion and parties' interest are weaken. These cause the Intensive conflict between the concept of rule of law and judicial practice.This thesis can be divided into 7 parts for about 50,000.000 wordsThe Introduction mentioned about the question of start-up retrial procedure and this thesis's basic writing approaches.The first chapter was on the start-up and necessity of the criminal retrial procedure. In detail, through out reviewing the origination and connotation of China's criminal retrial procedure, and analysis the epistemology aspect, the practical Judicial aspect, the proceeding requirement and the policy-regulation aspect of the necessity of the criminal retrial procedure.The second chapter was focused on the evaluation and tension of the criminal retrial procedure. The central point of view in this thesis was that the procedural arrangement should had been reflected value of Judicial Justice and Human Right Protection. Meanwhile, this chapter had also discussed the conflict between the existing concept of our country's retrial procedure which could be summed up as "every wrong will be righted" and the concept of Judicial efficiency and Adjusted Force.The third chapter compared and used the foreign country's regulations on the criminal retrial procedure of the criminal litigation codes for reference. On one hand, in value-standard, distinguished the Paramountcy of Human Rights and Public interests' Protection connotations; on the other hand, in practice, analysed the start-up subjects in each country's criminal retrial procedure, and discussed the reason of starting-up according to factal reasons, procedural reasons and legal reasons. At the last of this chapter, it summed up the existing concomitants of start-up procedure between the countrys mentioned above.The fourth chapter approached on the present situation and insufficiency of our country's criminal retrial procedure. The basic researching data acquisition was from spot investigation, statistic of Judicial practice and legal cases, and the methodology of analyse was mainly on the "hard-appealing" and the "state-benefits-oriented" views.The fifth chapter was the reconstruction of our country's retrial procedure. Firstly introduced the practical judicial experience of the GuangDong Province and summarized the successful points, then used the "legal-article-pattern" method to reconstruct the start-up of retrial procedure. Finally, I discussed the legislation concepts, subjects, establishment of retrial reason aspects.The concluding remarks was on the prospects of the retrial procedures' improvement.