Retrial Infliction Of Principle Study

Today, the legal system is being democratized increasingly. The focus of legal value is turning from punishing crime to protecting human rights. Then a series of principles are established. The principle of no additional punishment resulting from retrial procedure is one of them. The principle of no additional punishment resulting from retrial procedure is that regarding retrial unfavorable for defendants launched by prosecution side, the court does not have to aggravate or generally does not have to aggravate defendants' penalty. As for beneficial retrial, considering the modem litigation idea or the interests of defendants, that don't aggravate defendants' penalty is perfectly justified, so there is no need to say. The value of the principle of no additional punishment resulting from retrial procedure includes two aspects: justice value and efficiency value. Justice value means that the principle is important in realizing procedural justice. Efficiency value means that the principle is economical in litigation process and reasonable in litigation outcome. The theoretical basis of the principle of no additional punishment resulting from retrial procedure is the protection of human rights. Firstly, because the protection of human rights has a basis of political philosophy. Secondly, the protection of human rights is needed to maintain a balance between prosecution and defendants in criminal structure.As a basic principle, the specific manifestations of the principle of no additional punishment resulting from retrial procedure vary in different countries. British retrial distinguishes between legal retrial and factual retrial. Legal retrial can exist in the cases Which were acquitted. No matter what the results are, the retrial will not affect the original judgment of acquittal. Factual retrial includes adverse retrial and beneficial retrial. They set strict limits for adverse retrial. Regarding beneficial retrial, its result only be conducive to defendants. The United States prohibits adverse retrial absolutely. And there are indirect relieves for the defendants. Retrial results can only be beneficial for defendants. French law also includes legal retrial and factual retrial. The penalty to defendants can not be aggravated in the step of legal retrial. In factual retrial, French law only allows to bring favorable retrial. Germany retrial only refers to the factual retrial. This retrial is divided into favorable retrial and unfavorable retrial. With favorable retrial, there are only legal restrictions on the grounds of reasons. As for unfavorable retrial, not only the reasons are being set with more stringent restrictions than favorable retrial, but also there are time limits. In the four states retrial procedures are generally in the nature of a special relief program. The task is to correct a miscarriage of justice for the interest of the one who was originally convinced to be guilty, not to correct all errors of justice.The principle of no additional punishment resulting from retrial procedure does not exist in China. For favorable retrial which is brought by the defendants of the previous trial, the court may violate the principle of no accuse, no trial and the principle of separation of prosecution and trial, then aggravate the penalty of the defendants; not to mention the adverse retrial which is instituted by procuratorial organs. This is largely because trial supervision procedure in our country makes the theory of dialectical materialism as its theoretical foundation. The dialectical materialism theory itself is not false, but it is not completely compatible with the speciality and regularity of the justice work. The main shortcomings of the specific procedures of retrial aggravating in our country include the dislocation and inequality of application subject, the crudeness of retrial reasons and the lack of feasibility, and setting no restrictions on time and frequency. Retrial aggravating in our country in theory violates the principle of separation of prosecution and trial, the principle of no accuse, no trial, it do not conform to the characteristics of civilization litigation. In practice, it makes the principle of no additional punishment resulting from appeal a mere formality, and is not conducive to ensuring defendants' right to petition and courts to correct wrong cases, not conducive to strengthening the judicial organ's sense of responsibility, .and not conducive to further promoting the modernization and internationalization of China's criminal procedure system.When we establish the principle of no additional punishment resulting from retrial procedure, we should shift the traditional guiding ideology from "seek truth from facts, and right wrongs," to "punish criminals and protect human rights equilibrium". Under this guiding ideology, we should apply relative ism. This model has some scientificity in theory and rationality in practice. When we design specific procedure of relative ism, first we should remodel the main application for retrial. Cancel the regulation that courts can started a retrial on its own, restrict the power of procuratorial organs to bring a retrial. Give the defendants, their legal representatives and close relatives the right to start a retrial. Second, clarify the reasons for a retrial. Retrial reasons could be provided in the form of listing. We should make different provisions differentiating advantageous retrial and disadvantageous retrial. Third, we should clarify the time and frequency to ask for a retrial. As for time and frequency, we should also make different provisions differentiating advantageous retrial and disadvantageous retrial. Finally, as to relative ism, our country should make some specific provisions in law for its application in practice.