Problems And Countermeasures Of The System Of Counterappeal In Second Criminal Trial

Criminal protest system is the organic part of our country's prosecutorial system and criminal procedure system, through its serious research has a very important significance in theory and practice. The criminal system refers to a legal supervision system that a protest against a people's procuratorate considers that the people's court judgments and orders of the criminal is really wrong, request the people's court to reopen. According to the different causes of trial, criminal protest comprises protest according to the procedure of criminal trial and protest according to the procedure. That is the Criminal trial of the protest and the Retrial protest two kinds. This paper mainly discusses the criminal trial of the protest. Criminal procedure, refers to a local people's procuratorate to the people's court has not been a legally effective judgment or order of first instance criminal that is really wrong, according to law, the people's court at the next higher level of protest put forward. Look from the solid, the criminal trial of the protest is aim at judgment or ruling which is no legally effective; in form, it is in the form of protest appeals process. Criminal procedure is not only an important criminal trial supervision function of the procuratorial organs, but also the procuratorial organs'right remedy security function for the litigant. It is the activities that the people's procuratorates demand the people's court to rehear a judgment or ruling which exist definite error according to the provisions of the law; to implementing the principle that a mistake must be rectified , and ensure the correct implementation of the law of the country and social equity and justice, to constructing a socialist harmonious society, and so has extremely important role.In reality, the judicial practice in China's criminal trial of the small number of cases filed a protest, the success rate of the sentences are low, criminal the victim or his legal representative of right remedy are not effectively guarantee. Investigate its reason, mainly lies in the criminal trial of the protest of some of the defects existing system itself, including the following aspects. Firstly, The people's procuratorate at a higher level withdraw the protest directly exist some drawbacks:1.Beneath the authority of criminal protest. 2. Against the procuratorial organs hierarchy. 3. Do not accord with the characteristics of the process of procuratorial power. Secondly, the criminal trial of the protest to the victim or his legal representative of right remedies the enough attention. This is mainly embodied in the time limit mentioned protest limit short, the people's procuratorate's about whether to decide protest or not is arbitrarily large, the victim or his legal representative have no reconsideration rights when the people's procuratorate decides not to protest, and a protest against a request for reconsideration program legal documents production and service is not standard, etc.; Thirdly, the people's procuratorate of protest file criminal trial of the standard is not clear. In view of the above, to perfect the protest system of the criminal trial, the following measures should be taken: 1.Cancel the people's procuratorate at a higher level's power of decision about directly withdraw the protest. 2. Perfect the victim or his legal representative's right of claim through the related provisions of the program. 3. Make clear further the standard of the criminal trial's protest etc. So, they can further perfect our country's criminal trial of the protest system, they can better implementation of the policy of "tempering justice with mercy" criminal justice, maintain the defendant and the victim or his legal representative and the social public interest, prevent the judicial corruption, fairness and justice.