Research On The Objective Range Of Non Bis In Idem

The objective range of non bis in idem means the range which the non bis in idem take effect, which decides whether the Res judicata of the anterior procedure go into effect in the posterior one. The objective range of non bis in idem is do something with the object of litigation, the objective range of Res judicata and crime number.The objective range of non bis in idem in Civil Law System is fact constituting the offence charged with the conduct as the basic element. The object of criminal procedure in Civil Law System is conduct, a integrate crime is the object of litigation, the Res judicata of the anterior procedure take effect of the integrate crime. It ties up with the litigation pattern of the authority principle and the tradition of inquisitorial system, prosecuting attorney's indict is only a reference to the judgement. When the judge affirm the imputation different form the accusal, the judge would judge base on the imputation, and the prosecuting attorney could change the accusal before the judgement come out.The objective range of non bis in idem in Common Law System is count. There is no theory about object of litigation or crime number in Common Law System, how many criminal constituencies one conduct offends means how many offences there are. One conduct often constitutes many offences due to the legal articles competitive application. In order to avoid repetitive punishment on the same conduct, the U.S. Supreme Court established Blockburger Test and Brown Test correspond to the objective range of non bis in idem of Civil Law System to define the "same offence" to forbid the repetitive accusation based on the "same offence", and rule of collateral estoppel correspond to the outstretched range of non bis in idem of Civil Law System to forbid the parties to object the fact which the court already cognized and confirmed. In the litigation model of litigant principle, the mission of the judge is to judge whether the defendant offend the accusal but not to inquiry whether the defendant conduct crime.The object of criminal procedure and objective range of non bis in idem in Japanese is characteristic by combine the fact constituting the offence charged of Civil Law System and the count of Common Law System to balance this two litigation model.The graveness of repetitive prosecution in our criminal procedure and the subscription of International Covenant on Civil and Political Rights made the establishment of non bis in idem necessary. On the establishment of the objective range of non bis in idem, there are three options, little change based on Germany model, medium change based on Japanese model, large change based on American model. Medium change or large change may course rejection reaction because of legal transplanting. Consummate actual system based on Germany model would be a rational option.