The Criminal Procedure Analysis Of Retrial Procedure Of "High Tolls Case In Henan"

In Henan twain brothers crazy evade tolls in eight months, first instance affirm more than3.6million Yuan of the evasion amount, referred to as "high tolls ", thus cause the extensiveconcern of the public. When brother retract his testimony, the case start retrial procedure. Thetheoretical circles focus on the thorough analysis from the perspective of jurisprudence,criminal law such as how the case should be qualitative and measurement of penalty. But inthe trial, the procedural problems fail to give enough attention. Withdrawing a prosecution isthe embodiment of the procuratorial organ to exercise discretion, law allow prosecutors towithdraw his prosecution, however, after case made effective judgment, in the retrialprocuratorial organ can’t withdraw the prosecution. Retrial procedure is the relief program foreffected case, the lower court can’t correct the judgment of superior court by trial supervisionprocedure.From the perspective of the criminal procedure law, this article based on the "hightolls", analyses the illegality of withdrawing a prosecution of procuratorial organ and analysesthe illegality of retrial in Lu Shan court.Addition to the introduction and conclusion, the thesis is divided into four parts:The first part is the basic situation of the case. In Henan "high tolls ",Ping Dingshanintermediate court sentenced the defendant to life imprisonment. Because the great change ofthe evidence, Ping Dingshan intermediate court started the retrial procedure. After that, theprocuratorial organ announced withdraw the prosecution, then the case be returned to thepublic security organ for supplementary investigation. On December15,2011,the case openretrial by Lu Shan court, eventually the prime culprit was sentenced to seven yearsimprisonment.This case reflects many procedural issues, the main issues are the withdrawinga prosecution of procuratorial organ and the retrial of Lu Shan court.The second part is to analysis the main procedural problems of the case. First, from timeand applicable condition of withdrawing a prosecution, Ping Dingshan procuratoratewithdraw the prosecution of illegal, unreasonable. According to our law, no withdrawalprovisions in retrial procedure, the time of withdrawing a prosecution is "before the judgmentof first-instance is pronounced";The legal effect of withdrawing a prosecution is limited,retrial procedure can’t withdraw the prosecution, at the same time jurisdiction restrict publicprosecution; Even if the procuratorial organ withdraw his prosecution, the original effective judgment will not lose effectiveness. On the one hand, based on the authority of thejudgment.On the other hand, withdrawing a prosecution haven’t entity effect, it’s a kind ofprocedure. Second, the retrial by Lu Shan court is illegal, unreasonable. First of all, the lowercourts cannot have effect superior court judge the case retrial jurisdiction. Do not conform thecriminal procedural law; In fact the appeal right of defendant have been deprived; The fault oforiginal judgment can’t be correct; At the same time, it bring the difficult problem that thelower court cannot conduct the original judgment. Secondly, error of retrial of Lu Shan courtresult in two effective judgment in a case. Not only It violates the procedural law, but also Itbring difficult issues of implementation, which cause serious damage to the unity of the lawenforcement. Finally, the judgment of lower court cannot against the effective judgment ofsuperior court. The superior court supervise the lower court, retrial supervision is an importantway.The result of supervision is that the retrial judgment made by superior court change theoriginal judgment made by lower court;If the retrial verdict made by lower court overturn theoriginal judgment made by superior court, it cannot embody the prudence of retrial and itcannot maintain the authority of judicature; Compared to the lower court’s judgment, thesuperior court’s judgment seems to be more convinced.The third part is the conclusion of the case. On the basis of above analysis, this part pointout that the procedure must be followed by the court, procuratorial organ; According to therelevant provisions of retrial procedure of the criminal procedure law, Ping Dingshanintermediate court hear the case after started retrial procedure; In the face of great change ofthe evidence, Ping Dingshan procuratorial organ can choose to change or additional charges;With respect to the case haven’t jurisdiction, Lu Shan court make a decision that the case mustbe returned to the procuratorial organ.The fourth part is enlightenment of the case. Based on the research,this part reveal anddiscuss the guiding significance to deal with similar cases, as well as provide improvementsuggestions for the relevant laws and regulations. The judicial activities must adhere to theunity of the two effects; the trial persist in procedure justice and entity justice; At the time andapplicable scope of withdraw the prosecution, the criminal procedure law should make clearrules;The retrial procedure should be further perfected.