Second Instance The First Instance Illegal Remand Research

Superficially, remanding a case to the original court for trial because of procedure mistakes is a way and an important medium as to second trial court whose function includes rectifying mistakes. But from judicial practice, the verdict overthrows first instance procedure, led the case to a condition of untried and makes a defendant confronted with the continuation of taking into custody. The effect of remanding the case because of procedure mistakes to original court is important for entire judicial procedure and justice, and so, defendant litigation rights are worthy for us to throw into more energy going to research. By observing Criminal Procedure Law of our country currently, on one aspect ,the law has exampled the range that set a limit for the judge returning a case to previous court because of procedure illegal activities, on the another aspect, by setting some of regulations concerned ,the law has ensured that the judge can carries out effective punishment on first instance procedure for the fact breaking the law , relieved the right that the defendant had been damaged and get first instance procedure's completeness and legitimacy. However, the fact that legislation has flaws and judges have little attention to independent value of procedure in practice of judicature led remanding because of procedure mistakes formalistic in our country formalistic, and the essence of it is also the value that substantial justice is uppermost. Besides, few scholars put their eyes on remanding a case to the original court for trial because of procedure mistakes, since the academia had attached more attention to remanding case because of illegibility of facts and lack of evidence. Therefore, this thesis discusses the character, property and value of remanding case because of procedure mistakes at first, and then finds crux of the problem based on analyzing the legislation leak detailed and real abuse. Accordingly, the paper tries to adopt relevant reform measures we can find to really solve the problem, and make the system be its original faces.The whole thesis has been allocated three parts except for the introduction and the conclusion. There are about 40 thousands words in all. The main contents are as follows:The first part is about the principle of remanding a case to the original court for trial because of procedure mistakes. This part discusses the basic concept of this system, such as definition, classification, law characteristic, nature attribute and the value of remanding because of procedure mistakes. On the basis of brief introduction about remanding a case to the original court for trial because of procedure mistakes, the author finds remanding a case to the original court for trial because of procedure mistakes in our country is a criminal procedural verdict by analyzing its key elements, and it's a sanction for procedure mistakes. Moreover, according to the original legal intention of establishing this procedure, this part involves value location of remanding for trial because of procedure mistakes, such as the value of relieving right, the value of procedural justice and the value of two inherent values (it can promise the integration of procedural code's logic structure and code of criminal procedure can be carried out impartially). In short, we can find out the abuse and reason that exists in remand by brief introduction, even get the clear mind for remedy the remand.The second part is about observation and theoretical rethinking of remanding a case to the original court for trial because of procedure mistakes. First of all, this part collects legislation about remanding for trial because of procedure mistakes involving code of criminal procedure including highest court and other courts regulations. In addition, this part fully discusses the malpractice and negative effect of remand, such as inexplicitly standard of application, large discretion for judge, high litigation costs and so on. At the same time, because of the mutual cooperation between first trial court and second trial court, and judges ignore the value of procedure, court's duty were thrown into confusion. One side the investigation of second trial court exists in name only; another side, first trial court retrials perfunctorily. At last, this part analyses the reasons of the malpractice and negative effect. We not only consider the transform of legal concept, but also reform a supplementary mechanism for remand, while perfecting legal provide.In the third part, a deep and meticulous analysis is made about several schemes from different scholars and then the author gives her selves view. At first, the paper examples the three views including the theory of entire abolishment, the theory of entire retrial and the theory of strict retrial. And then, the author gives her selves view, which is adopting the third theory that formulates remanding procedure rules on the basis of limiting the scope and the times of remanding, and establishes a safeguarding mechanism for defendants. At last, according to above-mentioned analysis, the author reconstructs the remanding rule. The author argues that at first, we should perfect relative legal provides and make a standard of retrial case; next, we should set up procedure roles of second instance proceeding, retrial instance proceeding and controlling measures of new judges; at last, we need to assure remanding for trial because of procedure mistakes realize inherent value by establishing some relative safeguarding measures.