Research On The Criminal Procedural Reconsideration

In China, public security and judicial organs adopt decision on processing various cases.These decisions often have important influence on parties’ substantive rights and litigiousrights.Therefore, in order to regulate the power and protect the parties’ rights, it is verynecessary to build a relief channel in the criminal preocedure. Criminal procedurereconsideration, on this basis, is one apropriate relief channel for the decisions. Given to thesituation that the existing Act of Criminal Procedure and the judicial interpretation, thecriminal procedural reconsideration in China are indeed inadequate,and to some extends, amere formality. This research aims to identifying the problems of the criminal proceduralreconsideration and its reason and come up with several specific assumptions on reformthrough discussing the theories, analysing the cases and comparing with the similar system inother countries.The dissertation includes two parts: the foreword and the body. The body includes foursections which have about30,000words in total.The first section provides a biref introduction on what is criminal proceduralreconsideration, its history, suitable situation and categories. The researcher first introducesthe etymology of reconsideration and reveals the relationship between the criminal proceduralreconsideration and the normal reconsideration, and then points out that the criminalprocedural reconsideration is one kind of judicial reconsideration. After reviewing theprevious scholars’literature, the researcher coms up with his own assumption on that basis.Then the researcher identifies threee features of the criminal procedural reconsideration andanalyses the difference and similarities between relevant concepts, so that the researcher isable to identify the essence of the criminal procedural reconseideration. Then, on the pointview of China’s criminal procedural legislation evolution, the researcher is able to draw theconclusion that criminal procedural reconsideration comes from adminstrative reconsideration.Finally, based on the current Act of Criminal Procedure and relevant judicial interpretations,the researcher cited the suitable situation for the criminal procedural reconsideration and thencategorizes it based on four different criteria.In the second section, the researcher compares the criminal procedural reconsiderationwith its similar reconsideration system in other countries. Criminal procedural reconsiderationcomes from the administrative reconsideration which is very unique. It features‘Chinese own features’which means it is unlikely to find the very similar system in other countries.Therefore, the researcher tries to find the system which has similar functions in other countresand finally decides to study the counterappeal system in the following countries and areaswhich are: Germany, Japan and Taiwan. Based on the Criminal Procedural Law of the abovecountries, the researcher describes the details of the procedure and the applicable scope of thecounterappeal, and then concludes the similarities between the acts in different countries.In the third section, the researcher analyse the problems of the criminal proceduralreconsideration in China and its reason. The problems exist in the following four aspects:firstly, the regulation are dispersed and the contents have conflicts. Given to that, thereconsideration is not applicable. When building the judicial interpretaions, each judicialorgans ignore harmonization issues. Therefore, the conflicts issues occurred. Secondly, thescope of relief is quite narrow. The criminal procedural reconsideration is suitable for decisionbut not all the decisions con be treated as the objections of the criminal proceduralreconsideration. Thirdly, the reconsideration organs lack neutrality. In the reconsiderationsystem, the reconsideration organs are also the decision organs which are contrary to theprinciple tha‘tno one shall act as the judge in his own case’. Therefore,it is difficult to protectthe effectiveness of relief. Fourthly, the procedures are lack of implementation regulations.There is no clearly regulation on how to appeal reconsideration and what is the process ofreconsideration which leads to the problem that the judicial practice organs have no regulationto follow when processing reconsideration. The reason why criminal proceduralreconsideration has the above problems are because of the‘slipshod’legislative concept and‘administrative’judicial mode.Ih the fourth section, the researcher comes up with the assumption on how to reform thecriminal procedural reconsideration. Firstly, keeping reform in mind, the researcher comes upwith the following concepts: one ond hand, keeping and improving the reconsideration in thepre-trial proceedings; building procuratorial organ-centered relief system in pre-trialproceedings. On the other hand, canceling the reconsidertaion in trail proceedings; improvingthe existing appeal system for rulings. Secondly, keeping reform in mind, the researchercomes up with the schemes for perfecting the reconsideration in re-trail proceeding and theappeal system for rulings. The improving of the reconsideration in pre-trial proceedingsshould include three aspects which are: enlarging the relief scope, enhancing the neutrality ofreconsideration organs and perfecting the reconsideration procedure. As to the perfecting on the appealing, the following two aspects should be taken into consideration: enlarging thescope of rulings which could be appealed and establishing different appeal procedure forrulings from the appeal procedure for judgments.