Font Size: a A A

Study Of The Criminal Retrial Procedure

Posted on:2004-05-08Degree:MasterType:Thesis
Country:ChinaCandidate:Z ZhaoFull Text:PDF
GTID:2206360095450375Subject:Law
Abstract/Summary:PDF Full Text Request
Retrial procedure means the court retries one case because the final judgment has genuine fault. In the procedure theory, legislative and judiciary practice in China, judiciary supervision procedure equals to the retrial procedure and is adopted generally in the criminal procedure law, civil procedure law and administrative litigation law. From the historical perspective, in order to pursue the maximum substantive justice, criminal retrial has been given much importance in China all the time. However, the western countries have the tradition to maintain the "res judicata" judgments. Modern continental law countries generally inherited the ancient Roman principle of "non bis in idem". At the same time, based on the purpose of protecting human rights, the continental law countries establish special part, chapter or article to stipulate the retrial procedure in criminal procedure law. On contrast, due to the tradition of respecting individual freedom and according to the "rule against double jeopardy", Anglo-American law countries do not clearly stipulate the retrial procedure as the continental countries but stipulate specifically relieve procedure benefiting the accused.The different provisions of the criminal retrial deeply reflect the different concepts and values of criminal procedure in different countries. The French model can be generalized as limited punitive power and supremacy of human rights protection, and the German model can be generalized as limitedsubstantive truth principle. The "rule against double jeopardy" in Anglo-American legal system distinctly shows the supremacy of protecting human rights of the accused, pursuing and maintaining the supremacy of the judicial power. We have our own rationale of criminal retrial procedure , which in generally includes the epistemology of dialectical materialism of Marxist philosophy and substantive truth doctrine of procedure law theory. In addition, in pursing the substantive truth, the criminal retrial procedure in our country went to thoroughness. After deeply analyzing the nature of the procedure and features of the judicial power, this article elaborates the main problems of the rationale and institution establishment concerning criminal retrial procedure in China. By adopting the advanced judicial theory of the two legal systems and combining the practice in China, this article proposes that based on the establishment of the formal justice and procedural justice, we should establish the "non bis in idem" principle in criminal procedure and reestablish the criminal retrial system so as to unify the multiple values perfectly in the criminal retrial procedure.
Keywords/Search Tags:Criminal retrial procedure, Non bis in idem, Rule against double jeopardy, Formal justice, Procedure justice, Institution reestablishment
PDF Full Text Request
Related items