Study Of The Criminal Retrial Procedure

This paper is composed of five parts. The first two parts discuss about the concept, character and the function of the criminal retrial procedure. After comparing the criminal retrial procedures of the two legal families, the author analyses the defects of the theoretical basis and systems of china's At last, put forwards the reform suggestions. Criminal retrial procedure which is a relief measure plays an important part in realizing judiciary fair, human rights protection and unifying law enforcement Modern continental law countries generally inherit the ancient Roman principle of "Non Bis in Idem"and also stipulate complete criminal retrial procedure. Based on the different knowledge of the aim ,the retrial procedure of the continental law countries is classified as French model and German model. The rational of the French model can be generalized as limited punitive power and supremacy of human rights protection and the German model can be generalized as limited substantive truth principle. Based on the belief of procedure justice and the tradition of human rights protection, according to the "rule against double jeopardy", Anglon—American law countries don't stipulate the retrial procedure but stipulate relief procedures benefiting the accused, for example, the accused can apply for Habeas Corpus , Certiorari, etc, in special cases. Under the guide of the theory of factuality and that every wrong will be righted, taking the substantive truth principle of procedural theory as theoretical basis, China's retrial procedure pursues maximum substantive truth and ignores the adjudged force and determining force of effective judgements, procedural justice,efficiency and human rights protection. The criminal retrial system of China has many defects,for example, the casual start of the retrial procedure, the blend of charge and trial, the imbalance of the effect of appeal and protest, the irrationality of the starting reasons , the disadvantage of the governance of the same court, etc. It has many defects in its beliefs and systems. The fundamental way out for the criminal adjudicatory supervision procedure of China lies in renewal of litigation theories and alteration of litigation notion. Drawing lessons from the foreign countries and considering China's reality, we should hold the belief of maintaining the adjudged force of effective judgements and protecting human rights , give up the only goal of pursuing substantive...