The Reconstruction Of The Chinese Criminal Retrial Reason

The retrial of Li Changkui case, not only reflecting the case’s social harm to the society in physical sense,but also reflecting the absence of human rights protection,the importance of procedural value. In the process of building a socialist country under the rule of law in China, more emphasize should be put on the program value, so as to maintain the authority and seriousness of the law, protect the judge’s discretion, strictly enforce the law and prevent outside forces interfering the referee.Specifically, the first part of this paper, by the description about the disputes of the retrial of Li Changkui case, revealing the deep-seated problems of China’s retrial system, namely:the second trial had already commuted the suspension of Death Sentence with legal support, although this may seem lighter, it still within the scope of the judges discretion. Yunnan High Court took the "error use of law and sentencing" as the reason to start the retrial procedure, essentially, the starting of the retrial procedure is a response to external intervention or pressure, since the second instance change the original sentence, it is the Court of second instance who should take the responsibility of this mistake, the defendant should not be threaten by the "double jeopardy".Therefore, in China’s Code of Criminal Procedure and related laws with regard to retrial have few scientific, strict rules, lead to a retrial, particularly, against defendant’s retrial can easily be started, meanwhile, the advanced concept of the Criminal Procedure Law such as the protection of human rights, rule against double jeopardy have not been explicitly implemented.The second part of this paper briefly review our country’s criminal retrial system, value, and the grounds of retrial, pointing out that there are lots of fuzzy and unscientific aspects in the respect of starting the retrial, and it also not strictly distinguish favorable and unfavorable retrial reason towards defendant’s; in this chapter,by introducing the retrial system in the civil law countries and getting some useful experience,the author want to provide reasonable support for reconstruction of China’s retrial as a draw for the third part.Through this article’ exploring, the author tries to reconstruct a scientific and rational retrial system, to implement the ideas of human rights protection,to distinguish the two kinds of retrial towards the defendant, to refine provisions of violating procedures and duties offense,to restrict the error of law applies. Finally, the author expects to achieve a reasonable retrial subject mode, maintain solemnity, fairness and stability of the law.