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On Bis In Idem Principle In Our Criminal Procedure In The Building,

Posted on:2010-05-11Degree:MasterType:Thesis
Country:ChinaCandidate:S J LiuFull Text:PDF
GTID:2206360275964061Subject:Procedural Law
Abstract/Summary:PDF Full Text Request
AS the West's oldest principles of law,the protection from double jeopardy has been recognized by most of the counties in the word and given new connotation.The rule of the protection from double jeopardy is to safeguard the court's judgment which have been effective and protect the human rights.It is practical and feasible and plays an effective role in guiding and regulating the practice of criminal judicature.China has signed the United Nations《Civil and Political Rights Convention》in 1998,which prescript that "Any person who has been finally convicted or acquitted according to a country's law and criminal proceeding shall be free from other charges or being punished again on the same accusation "in its seventh clause of the forth stipulate.China has brought the rule of "protection of human rights" into the Constitution clearly in 2004.But,our Criminal Procedure Law is vacancy in the face of this principle.This paper described the meaning, origin,value,analysis of the principle of the protection from double jeopardy and analyzed its theoretical foundation in our country.The system of "the second trial is the last trial" can be said bud of the principle of the protection from double jeopardy. Therefore,it is necessary for us to introduce the system of the protection from double jeopardy to balance this contradictory;Through we balance the advantages and disadvantages which have brought up in the process of applying from the civil law and common law,and then combine with the status of our Criminal Procedure law,drawing their merits,get ring rid of the flaws,and has a reasonable transplantation of the law.At the same time,we should improve the corresponding theory of res judicature.We should balance the contradiction between the principle of "do our best to correct the mistakes" and if we want to establish a sound principle of the protection from double jeopardy in our country.So we should amend the current "adjudication supervision".This paper put forward my own shallow views on the aspects of our proceeding of trial supervision,the scope of the case who has the right to start up,the establishment of pre-trial system,and so on.At the same time,in the view of the problems that the Anglo-American countries have encountered in the application of the principle,the most important aspect is the extreme conflict between national security and certain individual freedoms human rights),we also should pay attention to the aspect that the principle of the protection from double jeopardy should be established relatively by some restrictions,but not absolutely. In a short,we will certainly faced with a process of the rejection-the integration in the process of putting the principle of the protection from double jeopardy integration into the traditional Chinese concept law soil based on the modern judicial philosophy.However, the development of history shows that establishment this principle in the criminal justice process is not only the choice of protecting the human rights,but also the only way in harmony with the "Convention" to integration.
Keywords/Search Tags:the protection from double jeopardy, protect the human rights, litigant efficiency, the proceeding of "adjudication supervision"
PDF Full Text Request
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