Research On The Reform Of Chinese Criminal Retrial Procedure

To be guaranteed that becomes effective the decision to recognize the fact conclusive, applicable legislation's accurate, the correction wrong referee, strengthened the administration of justice the legal supervision, the promotion judicature is fair, criminal retrial procedure has played the vital role. At present, there is an sharp increase in criminal appeal cases, appeals, petitions rose sharply, our country is facing new problems and new test, a large number of cases has already entered the criminal retrial procedure several times, there is not an end of Final Appeal cases, even some cases lasted ten years, not only a waste of judicial resources, but also the legal authority and uncertainties are blew by personal rights and the life is always uncertain. Present Law of Criminal Procedure are quite few about the re-trying procedure's legal norm, not yet straightens out with the re-trying system related each kind of relations, concrete system's design in "realistic, has the mistake must investigate" under instruction, based on realizes the error correction relief and the judicial surveillance function goal, moved toward the thorough entity real principle, judicature's authority, the referee has already sentenced the strength, accused person's rights and interests to yield completely to the truth pursue, the criminal re-trying procedure has violated the basic lawsuit theory and the system. Therefore, the present stage needs to strengthen our country criminal activity re-trying procedure the fundamental research, pursues the criminal re-trying procedure the reform way.This article through to criminal re-trying procedure localization theoretical analysis, in analyzes our country criminal retrial procedure legislation present situation comprehensively in the foundation, proposed the criminal re-trying procedure's reform suggests and devised, has a benefit by the time to the fundamental research and the practice work. This article has adopted literature methods and so on summary law, comparison methodology, historical analytic method in the research technique. This article innovated the place to lie to our country criminal activity re-trying procedure localization has carried on the thorough analysis, pointed out that our country criminal activity re-trying procedure system error correction relief and the judicial surveillance functional localization's insufficiency, analyzed has located the improper reason, has discovered our country tradition judicature idea the esteem which and the incident must investigate regarding the misjudged law case no longer manages the principle flaw this important attribute. The re-trying system reform's basic outlet lies in the lawsuit theory the renewal and the lawsuit idea transformation. The author closely holds "the idea to transform" this key point, no longer manages, the procedure according to the incident fairly and so on requests to locate the criminal re-trying procedure in "the special relief procedure", causes the criminal re-trying procedure to be far away from the pure error correction, the strong authority principle trial surveillance, abandons color which its any form redundant investigates, causes it to become the judicial activity which carries on to the accused person right provide reliefs specially. Revolved "the special relief this center to carry on a series of system design, determined reasonably the re-trying procedure start main body, the Forum competent, the discrimination was advantageous in the accused person and does not favor accused person's case, stipulated that is clear about the re-trying reason which unified, standard re-trying puts on record the audit program, the trying procedure, defined that trying, the examination deadline and the number of times and so on, the realistic difficult position which encountered by the time change present our country criminal activity re-trying procedure present legislation, realized the pursue objectively really to the pursue law real ideal transformation, moreover with maintained sufficiently is just, is fair, did not violate the social public sentiment the method to discover the law to be real, achieves the entity to be fair and the procedure was fair-Balanced.This article divides into three parts, the first part is pondered to our country criminal activity re-trying procedure localization, first pointed out our country criminal activity re-trying procedure system design is locates in realizes the error correction relief and the judicial surveillance function, in "realistic", "has the mistake must investigate", "not in vain not vertical" under the thought instruction, to guaranteed that becomes effective the decision to recognize the fact conclusive, applicable legislation's accurate, the correction wrong referee, strengthened the administration of justice the legal supervision, the promotion judicature is fair, has played the vital role. But our country criminal activity appealed that quantity climbs suddenly, the criminal re-trying applicable scope width, has trialed in final present situation not the finally to reflect the criminal re-trying procedure malpractice and localization of target improper. Overemphasized has the mistake to investigate, "the pursue entity was real" the idea to cause the national criminal activity to pursue the right of suit to exercise willfully with individual legal security sense thorough forfeit, the accused person is put in one kind passive and the secondary region, its destiny sank into for a long time the indefinite condition, even has become the national pursue completely "the truth" sacrificial victim; Vacillated the original referee's stability directly, destroys the original referee already to sentence the strength; The law adjusts the social relations are at the suspension condition throughout; The entity is placed really the supreme status, the procedure has become justly the entity just dependency. The criminal re-trying procedure localization existence question is our country tradition judicature idea the esteem which and the incident must investigate regarding the misjudged law case no longer manages the principle the flaw result. Insisting that the correct value orientation, processes the criminal re-trying procedure the functional localization question, has decided our country criminal activity re-trying procedure institutional arrangements directly, also affects the re-trying system's development key aspect. The criminal re-trying procedure should locate in "the special relief procedure", this is the human rights safeguard request inevitably, is also a country legal system moves toward the civilized important manifestation. This kind of relief mainly aims at the innocent accused person's special relief, certainly also includes in the peculiar circumstance to the public interest special relief. "special relief procedure" the localization has the coordinated criminal re-trying system with already to sentence the strength, the entity to be real and the law stability, the entity are fair and procedure fair contradictory influential role.This article second part briefed our country criminal activity re-trying procedure legislative present situation. Our country re-tries the procedure the legal rule to be quite brief, Law of Criminal Procedure "the trial monitor program" has stipulated the criminal re-trying procedure primary coverage in the fifth chapter, but this part only then 5 articles, cause in the judicial practice many aspects disorderly to be possible to follow, satisfies the judicature practical needs with difficulty. The special relief request constructs one new, the complete criminal re-trying procedure legal framework, but present Law of Criminal Procedure does not meet the special relief procedure requirement under old localization of target instruction's many stipulations. The criminal re-trying procedure's existence's deficiency mainly has: The re-trying start main body determines unreasonable, the Supreme court, the highest prosecutor, the Superior court, the higher authority prosecutor well as all levels of chief justices could mention the criminal re-trying procedure, the court may violate as the re-trying start main body have controlled examine the separation principle, the prosecutor do not have the re-trying anti-right of suit which limited, the litigant, although might appeal, but causes re-trying opening inevitably, this respected with our country with the assurance of human rights constitutional requirement not symbol; Has the re-trying jurisdiction from the Grass-roots court to the Supreme court, not only has not traded a more convenient quick processing for the grievant, instead aggravated appealed difficultly; The discrimination has been disadvantageous in and favors defendant's re-trying; Start reason fuzzy broad; Puts on record the audit program not to be standard; Re-trying starts the non-deadline limit; The trying procedure has not manifested the criminal re-trying procedure the particularity; Written trying has neglected the re-trying procedure particularity, is very often difficult to discover the case exists the question, strengthens judicature's fairness and the male letter strength with difficulty; In the re-trying trying process sent back the case retries a case increases the litigant to sue tired; The comprehensive review principle and re-trying do not add the punishment principle not to be clear about and so on.This article third part proposed our country criminal activity re-trying procedure reform basic mentality in view of our country criminal activity re-trying procedure's existence's deficiency. Reforms our country criminal retrial procedure to become the educational world and the practical realm common call. The reform only outlet is insisted the criminal re-trying procedure localization is established the correct direction, present "the error correction procedure", "the trial monitor program" will transform the special relief procedure. The overall evaluation is fair, values and so on lawsuit economy, cause our country's criminal re-trying procedure fair, the effective place through system's conformity "the assignment penalty's benefit or not the benefit", is not only the change present criminal activity re-trying procedure deviates from the norm, present situation of chaotic the judicial resources waste, to have the Chinese characteristic "the infinite appeal", "infinite re-trying" the procedure marks the period the essential method, maintains the judicial final judgment authority, realizes the judicature to be fair, construction harmonious society's road which must be taken. The author revolved "the special relief this center to carry on a series of system design, determined reasonably the re-trying procedure the start main body, thought should establish the application re-trying system, the re-trying application main body for is decided the guilty person and the legal representative, the close relative, in the People's Prosecutor ordinary circumstances can only, for is decided the guilty person's benefit to sue; The re-trying case by makes the effective referee's court on first-level People's court to have jurisdiction; Differentiates is advantageous in the accused person and does not favor accused person's re-trying case, encourages to mention is advantageous to accused person's re-trying, the limit mentions does not favor accused person's re-trying; Designed has been clear about and the unification re-trying reason, changed "really has the mistake" is "possibly has the mistake"; Lacks the audit program in view of our country criminal prosecution, the procedure not standard, the elastic oversized present situation, establishes re-trying to put on record the audit program, criminal re-trying examination sequencing, legal, suggested that formulates operational strong "Law case To supervise Law" the standard regarding institutions or the leadership inquiry case's and so on party committee, National People's Congress procedure; The re-trying case must compose the collegiate bench, holds a court hearing; Establishes the comprehensive review principle, re-trying not to add the punishment principle, is helpful in realizes the entity to be just, manifests to the accused person who is at the weak trend position performs the special protection, to is in the basic idea which the strong trend status the state power limits; The perfect criminal prosecution re-trying case's processing result, defined that trying, the examination deadline, the number of times, safeguard re-try referee's authority, eradicates "the case travel" the malpractice, reduces the lawsuit cycle, realizes the national judicature resources optimized disposition, raises the lawsuit benefit and the efficiency.