A Comparative Analysis Of The Reform Of China's Criminal Retrial Procedure

The criminal retrial procedure refers to a procedure that when the People's Court, People's Frocuratorate find there are errors of the facts or the application of law of the legally effective judgments and rulings, the People's Court will put forward a re-trial proceedings according to law. As effective verdict relief, criminal retrial procedure can be said that the last legal remedies in criminal proceedings. Whether the system is feasible, effective, directly relates to the vital interests of the parties. In running of this program, there is a conflict between two fundamental values, the adjudged force of the conclusions and the substantial truths of the cases. The different solutions of the contradiction reflect the specific types of system of the criminal retrial procedure the countries have.No matter in theory or in judicial practice, the criminal retrial procedure is a important and complex issue. However, China's criminal retrial procedure has many problems though it has played an important error-correcting function. In this paper, the concept, characteristics and value of the criminal retrial procedure are simply stated. By the investigation and the comparative study the system of the criminal retrial procedure of two Schools, then we'll explore the weaknesses and inadequacies of China's criminal retrial procedure, and put forward my own thinking on how to reform China's criminal retrial program. Full-text divided into four chapters:The first chapter is about the basic theory of the criminal retrial procedure, which is mainly about the concept, the characteristics and the function of the criminal retrial procedure.The second chapter is a comparative study of the criminal retrial procedure of Two Schools. It is divided into three parts, the first part is a comparison of specific systems of criminal retrial procedure between the Two Schools, the second part compare the theoretical basis for the criminal retrial procedure of Two Schools, the last part is the inspiration and reference the comparisons gives China's the reform of criminal retrial procedure.The third chapter is about the main issues of the criminal retrial procedure. It is divided into two parts. The first one is about the problems of the guiding ideology of China's criminal retrial procedure. The second part is about the problems on the specified provisions of the retrial procedure. The second part is also divided into three small parts. The first one is about the improper name of criminal retrial procedure. Then the retrial procedure is divided into pre-trial phase and trial phase to examine the problems involved in detail. This classification is an original in this article. It can give people a clearer and more coherent way to find the issues of the retrial procedure.The fourth chapter is about the reform of China's criminal retrial system. Corresponding to the order of problems pointed out in the third chapter, it separately proposed solution, and it is the focus of this article. It is divided into two parts. The first one proposed that updating concept of the law is the key of the reform of China's the criminal retrial procedure. Then it proposed that procedural justice, adjudged force, procedural safeguards, and efficiency in the procedure should be integrated into the values of China's criminal retrial procedure. The second part proposed that the re-design of the system was the best way of the reform of China's criminal retrial. This part concluded:the author proposed to "retrial procedure" instead of "trial supervision procedure", to transform the complainants to apply for retrial re-trial procedure as a part of criminal retrial procedure, to protest the prosecution, to abolish the Court's right to take the initiative to start re-trial and establish a standardized review process for retrial, to reform of the reasons for retrial in the pre-trial stage, to adjust the level of the retrial court of competent jurisdiction, to re-determine the retrial proceedings and apply the system of Final Appeal, to establish the principle that the retrial is not aggravating, to restrict the period for retrial filed, frequency and duration of the trial in the trial stage.