The Research About The New Remanding Trial System In The Second Criminal Instance In China

As a legal system handling the Criminal appealing cases, the re-trial system is not onlyto the court of second instance court of first instance trial supervision and reflect, but also tothe lawful rights and interests of the parties, especially the defendant again relief.Meanwhile, this system highlights the special value in legal process. However, due to theimperfection on law and on conception in Case-correction thought, there are many defects inthe new trial system in China.Based on the study of theory, this paper briefly describes thegeneral situation of this system in our country, combining with case analysis sums up themain problems of the system and the reasons for analysis, comparative study in foreignrelevant regulations, the author put forward the countermeasures to improve the system, inorder to promote the system play its function.Introduction,body and conclusion together constitute the main body of this article,including text from the following four aspects of analysis.The first part of the elaboration of the function of the second criminal trial the remandsystem of litigation and legal characteristics. Starting from the definition of the system, thegeneral summed up the second trial remand the legal characteristics. Examine the relevantprovisions in the trial level system and the purpose and significance of the procedure ofsecond instance, it was found that the remand system including procedural remedy, rightsprotection and supervision.The second part is mainly to foreign criminal trial of second instance the relevantregulation of the new trial system are briefly introduced. First introduces this system inBritain, the United States, France, Germany, Japan, Russia and other countries law. Due to theAnglo-American law system and the continental law system of criminal lawsuit purpose isdifferent, so the reason genealogy of law country instance of appeal for the retrial of aremanded reasons generally limited to legal application error or serious, procedural illegal,but the mainland legal system countries appeal trial remanded reason mainly is suitable forthe substantive errors or jurisdiction error. The third part elaborated our country concrete criminal trial of second instance new trialsystem present situation. Through the case analysis, leads to new trial in the second instancein criminal cases, there are many problems for example,"the fact is not clear","the evidenceis insufficient" standard is not clear, because of insufficient evidence contrary to doubtreturned from unprincipled sin,"or back or translate" selective program regulations lead to thejudge to shirk responsibility abuse remanded, remanded actual it is difficult to achieve thepurpose of error correction and right remedy instead lead to the defendant’s long-termdetention,"internal guidance" increased between the superior and the subordinate relationshipbetween the administrative court. Then the new trial these problems reason of thoroughlyanalyzed, summarized both judicial concept levels of reason, also has the reason of the systemlevel.The fourth part focuses on perfecting our country’s criminal trial of second instance newtrial system suggestion. The author thinks that should update judicial concept in order toensure system benign operation, and to reconstruct the system itself. From the judicial idea ofspeaking, is to establish guarantee human rights, and procedural justice and the concept ofpresumption of innocence. From the system design general, it is through redefining thesubstantive reason remanded, expansion procedural cause remanded content, the trial ofsecond instance court session to decide after new trial, clear new trial court, restrictedprocedural cause remanded times, change remanded to the defendant after the compulsorymeasures and the court internal in hair to distinguish the judge in the case of the subjectiveobjective fault in seven aspects of perfecting our country’s new trial system.