The Research Of The Limitation Of Aggravating Penalty In Criminal Retrial Of China

The retrial procedure is also called the procedure for trial supervision.As the supplement tothe conventional trial procedures,the retrial procedure is an organic part in criminalproceedings.It refers to the justice,the protection of the rights of defendants,the authorityof effective judgment and legal stability.So the retrial procedure needs careful systemdesign.As the embodiment of the principle of prohibition of alteration with prejudice,theprinciple of no additional punishment resulting from retrial procedure has been accepted bythe countries all over the world. However, the judicial practice in China has been stillfocusing on the substantive truth. The retrial procedure pays attention to “seek truth fromfacts,and right wrongs”, to the goal of “justice”. In this case, It will encounter greatresistance,if establishing the principle of no additional punishment resulting from retrialprocedure is put forth rashly. So, this thesis will make the limitation of the retrialaggravating as the breakthrough point, in order to limit retrial aggravating, and to limit therepeated prosecution in retrial procedure and repeated trial, so as to realize the protection ofdefendants rights, and create the conditions for the future establishment of retrial againstpunishment aggravation principle. The discussion consists of the following three parts.The first part is an overview of the limitation of the retrial aggravating.Firstly thebasic meaning of it will be expounded on. Secondly, the extraterritorial investigation of theretrial aggravation will be discussed. With the theory of res judicata, the principle has beendeveloped into two kinds of modes which are against punishment aggravation in criminalretrial. They are the mode of France and the one of Germany. The France mode isabsoluteness ism, and the other is relative ism. And the specific legal system of commonlaw countries is in line with the spirit of no additional punishment resulting from retrialprocedure, although few concepts and expressions of the retrial and procedure are complete.Thirdly, the theoretical basis of setting the limitation will be analyzed for retrial, includingfour parts: maintenance of the defendants rights and interests, following the theory of resjudicata, and restraining criminal jurisdiction, and consideration of the judicial justice.The second part is the discussion on the theory and practice of retrialaggravating.Some important characteristics of the retrial procedure will be listed, such asstarting the retrial procedure with authority, comprehensive checking, unlimited retrialaggravating and so on. Then the drawbacks of them will be analyzed. On the basis, the interpretations of the current situation of our county will be put, such as excessive pursuitof ideal effect of “justice”, adherence to the “seek truth from facts, and right wrongs”, thefunction of process control on entity weakened, an overwhelming advantage over theprocedural justice for the substantive justice, the inaccurate function positioning of retrialprocedure in criminal procedure and lack of the limitation of the criminal procedure and thepenal punishment.With the grim situation of the theory and the reality, it is necessary toimpose a restriction on retrial aggravating.The third part firstly discusses the necessity and feasibility of limiting the retrialaggravating.Because of unlimited, the retrial aggravating leads to lack of protection of therights and interests of the defendants, and cause that the stability of effective judgment isshaken, the authority of the ordinary procedure is damaged, and the judicial resources aremore nervous. One hand, retrial aggravating has to be limited. On the other hand, it isfeasible to limit it. The citizens generally raise the awareness of rights of themselves, whichwill provides mass basis for the reform. Objective truth transforms to truth in law, whichwill provides ideological foundation for it. Results of research provide theoretical support.Secondly, there may be some constructive suggestions. Considering the practical factors,the proposals of reform will be divided into two steps. The first step is the goal in the nearfuture, the second one is the long-term goal, which is to establish the relative ism of theprinciple of on additional punishment resulting from retrial procedure. It is an importantbasis of the long-term goal, which is created and prepared by the goal in the near future. Sothe goal in the near future will be discussed at great length. For the first step, the rangewithin which increasing the penalty of the defendant is allowed, and out of which it isprohibited, will be determined. And the range will be summarized in four aspects, such asfacts, the application of the law, the application of the procedure, staff positions duty and soon. And then, the suggestion of the operating system will be made, including complaint,accusation and trial.