Bis In Idem Principle Study

In human rights safeguard daily legalization today, Along with the lawsuit economic efficiency lawsuit law view, the international law surpass the national law the lawsuit law view establishment and "the national standard", "the authority standard", "the voluntary standard" approaches "individual standard", "the right standard" the lawsuit law view gradually transformation and the sink deep into the hearts of the people, The introduction load bearing human rights safeguard value function incident no longer principle has been having the idea foundation and the time significance. At the same time, facing our country criminal activity trial monitor program many questions, carries on the transformation using the incident no longer principle to it also to have the feasibility and pointed.The incident no longer principle, is a western nation ancient criminal prosecution principle. About the incident no longer principle accurate implication, the educational world always has in the understanding the difference. This article in analyzes various viewpoints in the foundation to believe, the incident no longer principle accurate meaning must include two aspects: One is the lawsuit is the potency, namely the plaintiff does not have case of on already the prosecution, to be is in the lawsuit sues again, in view of controls the right of suit, does not permit the repetition complaint; Two, the decision already sentences the strength, after also decides the determination, the litigant does not have on the identical case which already decided to sue, emphasizes was again the decision already sentences the strength and the stability, the decision once becomes effective, did not permit the change. Below a principle no longer principle has the characteristic: (1) does not become effective take the court the referee as the premise, so long as has the effective complaint, has the incident no longer principle suitable question; (2) the incident no longer principle with already sentences the strength close correlation, the maintenance already sentences the strength the principle; (3) the incident no longer principle objective is emphasizes the prohibition complaint the duplication and maintenances the law stability. England, US, France in 12 centuries, 17th century, 18th century have established the incident no longer principle separately. As a result of the capitalism in the world expansion, also inevitably was affecting many countries take the British and American law as representative's main capitalist country principle of legality and the spirit, country and so on Japan, India, Venezuela, Philippines, Canada also successively has established the incident no longer principle in its our country constitution or Law of Criminal Procedure. The incident no longer principle also obtains the international joint pledge the confirmation.The incident no longer principle Maintenances stability of law, the establishment law authority, is helpful in the realization procedure is just. The incident no longer principle maintains accused person's human rights. The incident no longer principle may prevent the nonessential redundant lawsuit, on the one hand may avoid causing the accused person to receive the unfair treatment, on the other hand also may prevent the judicial activities delaying with the criminal judicature resources waste. Incident no longer principle suitable main body including subject of object and voluntary main body. Incident no longer principle suitable object namely "incident" meaning. Many national criminal prosecution legislations or the legal precedent while persisted this principle, has all stipulated incident no longer principle some exceptional situations.The incident no longer principle took the modern criminal prosecution a basic principle, many national legislations has all made the stipulation, but our country Law of Criminal Procedure had not stipulated actually. In examines our country criminal activity retrial procedure in the foundation which the idea, the concrete programming is insufficient, analyzed in our country criminal prosecution system to introduce the incident no longer principle the necessity and the feasibility, and our country criminal activity retrial procedure consummation proposed the countermeasure, namely further reformed and consummates our country criminal prosecution the basic principle system, "the general rule" center introduced the incident no longer principle in the Law of Criminal Procedure, took our country criminal activity retrial procedure the guiding principle, differentiated to accused person advantageous retrial and to accused person disadvantageous retrial, cancelled the court retrial initiative start power, brought into line with the procuratorate retrial appeal the judicial examination scope, bestowed on retrial the applicant status in the litigant, Enhances retrial to examine the level, the thin retrial reason, enable it to have the feasibility, the retrial case must not have under the situation which the legal rule not publicly tries publicly to hold a court hearing.