On The Reconstruction Of China's Criminal Retrial Procedure

Criminal prejudicial procedure, as a king of correct mechanism of criminal suit, is commonly used in the criminal judicial procedure, though which is in contradiction with the major rule of modern criminal judgments in the value-one case can't be handled twice. Every nation in the world views it as a exception. For the human being' realization ability, it is unavoidable objective fact to make incorrect or wrong judgment in the criminal common procedure. As the book recorded, there was some provision of the retrial system, which was similar to modern prejudicial procedure in Dynasty Shang, so the history to modern prejudicial procedure is very long in china. Chinese correct prejudicial procedure, called judicial supervision procedure, develops and perfects regularly, using the legislative experience of Soviet and western countries' criminal suit theory for reference at the basis of summary of providing about prejudicial procedure in the law of democratic political power in the period of New Revolution.The theory basis of Chinese judicial supervision procedure is very weak in the judicial practice, I,e,Chinese prejudicial order is random, in chaos and lack of science, democracy and reason. so the field of theory and concrete matters keep their own opinions about whether the prejudicial system exists and reforms or not and how to reform it. in my opinion, for the influence of cultural tradition and legislative sense, Chinese current prejudicial system is restricted by the philosophical thoughts "to find the theory in the natural law and to correct the wrong", and it ignores the natural law and features of the suit , which results in the lacks in the concrete regulation design of the prejudicial procedure. in all, we can draw a conduction by four sentences, I.e.," no distinction between accruement and defence, variety of operations of retrial. Lack of operability of the reason of retrial and the realization of the provide. lackof specialty of the prejudicial procedure and the common of the rule design, the seven of the people's right protection is little in the prejudicial procedure," so the direction of the prejudicial procedure development is to reform and innovate it and to set a new prejudicial system which fits to Chinese real case.According to the existing problem in the criminal the existing problem in the criminal prejudicial, practice, I thing, we shall set up the modern judicial faith contrast to "one case can't be handled twice" and "no infliction in the prejudicial procedure" and in the concrete design of rules, we shall abolish the operation right of the court to prejudge and put the litigants application for retrial into the suit and make it procedure and specialization or to reform the retrial-first instance-last instance system and specialize the prejudicial procedure, etc.In a word, to set the criminal procedure is a measure that has no way out. We shall try to avoid the case running into the prejudicial procedure. Reform and prevention, there is no way that can completely and efficiently improves the existing problem in Chinese criminal prejudicial system.