On Retrial Infliction

With neoteric bourgeoisie strengthening and democratization improving, the system of retrial against punishment aggravation was brought forward to limit state right to prosecute and power of punishment as well as to protect culprit's fundamental human rights and procedural rights, which remedies some possible faults arising from implementation of retrial system.Due to complexity of criminal proceedings, we must make balance on each kind of values and harmonize the conflicts among systems. For development of the criminal judicatory of China is later than some other countries, the system is not mature any more; above all, there are so many defects existing in practice of retrial proceedings, especially in the following cases: 1) the legal status of defendant in criminal proceedings can not be safeguarded effectually; 2) retrial may be instituted optionally; 3) the principle of appeal against punishment aggravation can be evaded by instituting retrial, which incurred by excessive pursuance of 'seeking truth from facts' and 'faults must be rectified' as well as indefinite role of courts and procuratorial organs in retrial proceedings. Introduction of the principle of retrial against punishment aggravation is favorable for implementation of the principle of appeal against punishment aggravation, separation of prosecution from judgment, limitation or prevention of jurisdiction or its abuse, accordingly, further enhancement of consciousness of duty of judicial organ as well as more favorable for encouraging criminal defendants to institute remedy procedure actively for their sef-interests so that the real value of criminal judicatory can come true.To change status quo abovementioned, by discussing legitimacy of the principle of retrial against punishment aggravation, the author analyzes the value contained in this principle. Based on rational analysis of defects arising in the judicatory practice, the author tries to design frame of relevant system in aspects of the range of use of this principle, distribution of rights to institute retrial procedure, limitation of retrial times and trial grade, which makes for protection of human right of criminal defendant. At last, the author hopes that the system designed can resolve related problems arising in practice.