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The Research On Criminal Retrial Procedure

Posted on:2013-07-05Degree:MasterType:Thesis
Country:ChinaCandidate:T Y LuFull Text:PDF
GTID:2246330371479858Subject:Law
Abstract/Summary:PDF Full Text Request
The criminal retrial procedure is the most important part of the criminalprosecution. It’s a special relief procedure and scientific reasonable criminal retrialprocedure. It’s concern with the justice and the standard of the adjudgment. There willbe four parts of the discussion in this paper.1. the normal thoery of the criminal retrial procedureThere are three key points in the criminal retrial procedure. Firstly, the definitionof the criminal retrial procedure. The usage of the criminal retrial procedure is tocorrect the adjudgment or the arbitrament of the case which had already adjudicatedbut in some wrong ways. And, it’s also a retrial which could ensure the justice of themodern jurisdiction. Secondly, the basic theory of the criminal retrial procedure. Theresearch of the basic theory of the criminal retrial procedure is from four aspects. It’sthe purpose of the criminal prosecution, the fundamental of the criminal prosecution,the re-know of the jurisdiction, the status of the Criminal Law. Thirdly, the value ofthe criminal retrial procedure. The purpose of our retrial procedure is to solve theproblem of the wrong fact after the adjudgment or the misunderstanding of the law.Follow the facts of the case and to correct all the mistakes during the retrial. Topresent the justice of our law is to protect the justice when trial cases and the rights ofthe human being.2. the comparability analysis of the criminal retrial procedureMost countries abroad added the criminal retrial procedure into Criminal Law.To protect the legal suit right of the appellee and the justice of the law.Compare thelaw of the American and UK with the law of the main continent of china, thenanalysis the retrial procedure all over the world. Depend on the AGAINST DOUBLEJEOPARDY of the American and UK laws, the appellee can not be prosecuted, trialor measurement of penalty. There also is the standard rule of the law in main-landChina. The Retrial Procedure of France can allow the case be retrial only on the benefits of the appellee but go against the benefits of the appellee. The RetrialProcedure of Germany is to follow the real justice, it means to accomplish the truth ofthe case and the rights of human beings, the retrial must be suited. According to thestipulation of the double dangerous forbiddance of the Japanese constitution, theretrial must be prosecuted only by be propitious to the appellee.Compared with the differences of the retrial procedure of other countries, eventhey all have so many differences between each other, they also have the samefeatures: First, they all have the retrial procedure in their laws. The value and theusage of the retrial procedure is un-replaceable and all the other countries whichfollow the rules insistently. Second, the feature which to protect the rights of thehuman beings. The retrial procedure has been set up of all the other countriesaccording to the human rights, the consideration of the management of the humanbeings. The retrial procedure has put the human rights on the most important situation.Third, the rigorous execute procedure. To protect the law can be executed insistently,all the other countries have the rigorous set up and hear rules.3. the basic content of the criminal retrial procedureThe first, the proposer of the setup of the criminal retrial procedure. One is theorganization or private person who offer a request of the retrial, then the law-officerwho charge the retrial; the other way is to offer a request by the one who has therights-the appellee or his relatives, or the law-officer. And the last way to offer aretrial request is by the court in some other countries which has the different rules.The second, the conditions of the setup of the criminal retrial procedure. Theretrial is requested by the benefits of the defendant only, or the rights of the defendant(include the non-rights of the defendant)The third, the jurisdiction of the criminal retrial procedure.One is by the Supreme Court which accept the cases of the criminal retrial, otheris to accept by the court which already finished the cases, the last is accept by thehigher court. All the courts mentioned above can arbitrated by themselves.The fourth, the available period of time of the criminal retrial procedure. Thereare three conditions here: one is the period of the un-under-control criminal retrialapplication time. the other is the period which divide by propitious or dis-propitious to the defendant. And the last one is according to the rules of the law which can bedivide into two parts which is propitious or dis-propitious to the defendant, but thereis a strict rule for the dis-propitious to the defendant.4. the disadvantages and the advantages of the criminal retrial procedure of chinaFirstly, the disadvantages of the criminal retrial procedure of ChinaOne is the short to set up a new criminal retrial. The court as a main key pointwhich has the disadvantage, and there is no clear model which has the reasonableretrial request, the last is the jurisdiction has the serve faults. The other is theinquisition of the criminal retrial procedure has some problems. A comprehensivereview of principles and the principle of criminal retrial are not consummated; theun-reasonable methods of the retrial of the case; the faults of the ways of the retrial;the force of the law of the retrial and the times have some disadvantages.Secondly, some proposes of the criminal retrial procedureThe start of the criminal retrial procedure. To restrict or cancel the rights of thebring forward the retrial of the courts. The neutral, passive and negative positions ofthe court when the criminal judgement has been executed which confess the court cannot be the starter of the retrial procedure. The reasons of the criminal retrial procedure.As a special rescue procedure, the retrial procedure should has it’s own rules tomanage. As long as the rules have been broken, the retrial could be offered. The offerof the retrial request of the defendant can be appeal after the judgment go into effectunder the advantages for the defendant; the disadvantages of the appeal of thedefendant should be stipulate the material time. For the criminal defendant who hadbeen executed the wrong accusal, at anytime, even the defendant had already dead,the retrial procedure should be started anyway.The inquisition of the criminal retrial procedure. The first,The form of thecriminal retrial procedure.It should reform a new collegiate bench meeting. By thetrial, to carry through the investigation of the open judgement of the court. To the truefacts, intact evidences but apply the wrong law cases, could be debated with theapplication of the law so that the investigation of the court could be deleted. Thesecond, The Principe of the criminal retrial procedure. One mode is the forbid of noadditional punishment relatively; and the other is the forbid of no additional punishment. We can also call the forbid of no additional punishment relatively theREAL FACT mode, and it’s also suitable for the situation of our country. The third,the limitation of the criminal retrial procedure. The cases according to the retrialprocedure of the people’s court should be finished in three months after the day of thedecision of the retrial. If it is necessary to delay the date, it must be approved by thechief justice of the execute court, then the criminal can get three months extra. Thefourth, The results of the criminal retrial procedure. It could not be allowed about theretrial cases return to the lower court when the higher court proceed the retrial cases.So that the re-view can be avoided. When the retrial procedure could not make thefinal decision about the defendant is guilty, it should follow the principle ofNon-existence of doubted guilt to make the judgement of innocence. The fifth,Theeffectiveness of the criminal retrial procedure and the limitation of the times of thecriminal retrial procedure. As the special rescue of the retrial procedure, it should bethe final judgement. When the judgement can be confirmed, the effectiveness shouldbe executed immediately. To the wrong judgement of the highest court made, theintermediate court, the high court or the highest court do the retrial.
Keywords/Search Tags:Criminal Retrial, Retrial Against Punishment Aggravation, Non Bis in Idem
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