The Status Quo And Reflection On The Protest Of Criminal Appeal

The protest of criminal appeal is the protest that People's Procuratorate appeal to the People's court at the next higher level when Procuratorate thought the first trial referee really has some mistake.In judicial practice,it has some problems mainly display in:"few appeals, difficultly appeals","many anti-entity few anti-procedure","few appeal by the victim requested","few change the original judgments" and so on.Facing this kind of situation,the author wants to discover the inevitable reasons of these phenomenon existences by discussing the current law article's analyses,the appeal data analysis and the case.Therefore,regarding these reason analyses,the author wants to discover solutions to the situation such as "few appeals,difficultly appeals",and to propose the private judgments to penal procedure legislation.The article can be divided into three parts.The first part is the present situation of the protest of criminal appeal.The author carries on the elaboration from two aspects.It is the legislative situation firstly.The protest system of criminal appeal is involved with "Constitution of the People's Republic of China","Law of Criminal Procedure","the criminal prosecution rule of the People's Procuratorate","the Supreme People's Procuratorate about criminal appeal's opinions" and so on;Secondly,the author describes the present practices.By anglicizing the data of the national second trial appeal from 2000 to 2007 and the C province's data from 2004 to 2007,the author discovery few appeal,low quality of the appeal and so on are the subject matters.The second part is the primary factor to restrict the protest system.The author launches from three aspects.It shows the reason of legislation at first.The related law's unworthiness, the subject of right to protest was not clear about,the procuratorate critique system's negative effects which restrict the development in the legal stratification plane.Secondly,the procuratorate with high pressure cannot exercise the power of procuratorial,the court internal instruction system's hindrance is the restriction factor which in the practice exists are realistic reasons.Thirdly,the procuratorate has not to be high enthusiasm,which is the idea factor.The third part is the reconsiderations to present question.First part is the reconsiderations of criminal appeal' idea.With the backward of the protest,it must set up the correct criminal appeal idea.Second part is the reconsideration of the system.The appeal condition should revise;the criminal law article should suitably the refinement,the procuratorate serviceexamination system and the court mechanism need to improve.Therefore,on the one hand making the appropriate readjustment to the existing laws and regulations;On the other hand strengthening to guidance and transformation ideas to display the function of the appeal.What is certain is that no matter how the system will be design,it must enable the penal procedure to assurance of human rights better,the penalty crime,lets the guilty person's responsibility for an offense punishment adapt,the innocent person gets rid of the crime suspicion.Therefore,judicial justice is the system reform's goal.The judicature is the last defense line of the social equity,including the reforms of the second trial appeal system should take judicial justice as the final value orientation.