Research On The Construction Of The Rule Against Double Jeopardy In China

The rule against double jeopardy is an old legal principle that no person shall for the same crime and suffered more than two criminal prosecution, trial, conviction or sentence bitter.The rules in the balance state of crime control and the protection of citizen individual freedom plays a very important role, especially in the individual citizens face many times stronger than his own country,it provides individuals with a protection for the same offence against the government repetition prosecution and repetition trials of safeguard measures.So far, the rules for most countries in the world of criminal litigation system confirmation, and by the international human rights conventions--"Convention on the civil and political rights","the European Convention on human rights", adopted. China Limited to the traditional theory of criminal litigation did not set legislation on the rule against double jeopardy.In traditional Chinese law culture, law is the ruler of the tools of for dominant,in this background, the heavy body light program idea and practice is quite popular. China’s criminal procedure law is to punish crime, the protection of human rights for the value target, but long-term former heavy. In the1996, China’s "Criminal Procedure Law" were modified, this reform has milepost sense, but for the1996revision of the code of criminal procedure evaluation, Mr. Wang Minyuan seems to be filled with regret, he pointed out:"the amended criminal procedure law is not very thoroughin many systems design, The procedure from the rationality, justice and the protection and maintenance of litigation involving human rights watch,some of the criminal procedure law in1979is not much progress". In2012our country criminal procedural law was modified, This amendment also reflected on the punishment of crime and the protection of human needing, but in a lot of content is to be insufficient, many of the modern concept of rule of law the basic principles are not established, the scholars were very disappointing for the lack of the rule against double jeopardy, The world within the scope of the criminal judicial practice also proved the rule against double jeopardy in the universal truth, and the contemporary human rights conventions for the rule are widely prescribed to make it as an international norm is determined. So this paper adopted a more historical, comparative value analysis and other research methods to study law rule against double jeopardy, in order to explore a suitable for China’s national conditions of the rule against double jeopardy of the road.This paper is divided into four parts. From the rule against double jeopardy with basic theory, explains the principles contents and legislative status in foreign countries, then analyzes our country judicial practice problems, and as a result of construction of china’s relevant system. The first part is mainly to describe and analyze the rule against double jeopardy meaning, value, theoretical basis and its exception. It show the rule against double jeopardy in constructing modern criminal procedure system of justice, freedom, efficiency, law stability and so on have more value significance. At the same time, it analysised the rule against double jeopardy in the theoretical basis, and elaborated the valu of the rule in the procedure justice and the accused rights protection function. Because the rule is absolutely applicable can also lead to criminal suspects escape, so its exceptions should be analysised, and on China’s construction of the rule to have draw lessons from a meaning. The second part, it form four different of the rule against double jeopardy and idem from its value orientation-system application, the time for species and on the prosecution right of appeal more restrictive-to undertook comparative study, while the origin of these two kinds of system were same, but after that has appeared development differences in the process. At the same time, it form different countries on the two rules of the legislative situation to carry on the comparative analysis,and from the various countries’ legislation on the difference between the two are illustrated.The third part,elaborated the issues of our country repeat of prosecution and trial in judicial practice, and appears the reason of these problems in the system and concept in practice. And our country Influenced by the "seek truth from facts, mistakes must be corrected whenever discovered" principles accused the repeatedly prosecution and trial of the phenomenon, The law for the protection of the rights and interests of the accused in the deletion, reach our country to build the necessity of the rule against double jeopardy. At the same time to our establishment of the rule against double jeopardy feasibility undertook theory is discussed, our country’s amendment of criminal procedure law, human rights and on the human rights provisions of the Constitution and the ancient concept of human development to our country to establish the rule has positive effect. The fourth part, based on previous part, from changing of concept to system to undertake analysis.First of all, from the concept to change value of criminal law function, next form the national conditions of our country as the foundation, from the legal system, for our country to construct the rule against double jeopardy put forward some theoretical views and specific system reform methods and suggestions.