On The Reconstruction Of The Criminal Procedure Of Second Instance

The present Chinese judicatory focuses on the judicial efficiency and protection of the legal rights of litigants at the same time. As an independent procedure of criminal litigation, the second instance procedure is not only a general relief procedure, but also an important part of the whole criminal litigation system which has significance in rectification of wrong judgment and clarification of case fact of the first instance, right application of law and maintenance of judicial authority. But the protection of rights of litigants is ignored while the"second instance is final"system improves the judicial efficiency. The second instance system shall be reformed by the trend of present juridical reform requirement. This reform shall start from the system purpose of protection of the legal rights of litigants in criminal litigation procedure. The third instance shall be added on the basis of the second instance in criminal litigation procedure to enhance the appeal degrees for litigants and to produce most equitable judgment through double censor of second and third instance.This article has four main parts, which are the analysis of the second criminal trial procedures, instance problems of Second criminal trial Procedure in china, the major character of western countries'second criminal trial procedures and the method to improve the second criminal trial procedures. In the first part, the article indicate that the function of the second criminal trial procedures should include several part, such as protect the parties'rights, correct the error of the first trail's judges, prevent error, release and eliminate dissatisfaction and the unionize the applicable of law. The instance problems of second criminal trail procedure in china demonstrate in two part, defection in legislation, which include the contrary to the principles of a comprehensive review of the basic rules of proceedings in the current two-tiered system; and the singularity setting increases difficulties to protect parties'rights. The problems also exist within practice, which include Second instance of no trial-based caused the second trial procedures virtual. The final judge hard to end harm the reputation of laws very seriously and the administrative trend between the court influences the accomplish of the second trial is the final trial rule and decline the power of using uniform law in the Supreme People's Court. The third part introduced the common characteristics of the second criminal trial procedures in western countries. The design of the third trial structure, refer to protect the parties'rights, following the second trial principles and the diversity of setting second criminal procedures are all their characters. Lastly, following the analysis above, this essay will analysis the necessity of legislating the third trial as final judge rule and give countermeasure of improving second criminal trial procedures and legislating the third trial as final judge rule.