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On New Evidence To Start Criminal Retrial

Posted on:2015-01-09Degree:MasterType:Thesis
Country:ChinaCandidate:Y WangFull Text:PDF
GTID:2296330470979720Subject:Criminal Law
Abstract/Summary:PDF Full Text Request
As the only special remedy procedure in China’s criminal procedure, criminal retrial procedure has responsibility to balance the purposes of criminal procedure between finding truth and protecting stability of law. Justice reflects not only on substantial justice but also on procedural justice, so that stability of law can be protected better. Starting procedure of criminal retrial procedure becomes the supporting point of this balance, so it must be put in the middle of the lever.The new evidence to start criminal retrial, which embraces problems of substantial law, procedural law and evidential law in itself, plays a crucial role in retrial starting procedure, and it is the breakout point for perfecting the starting procedure.There is a unique understanding of the new evidence issue in Taiwan which has distinctive structure of criminal procedure. That the new evidence must have qualities of newness and obviousness, the understanding is worth studying for China’s reference. Evidence with newness is the evidence that was not investigated on the last court for the court did not know it. New evidence with obviousness is the evidence which can obviously effect on the fact acknowledged by the last court and can change the last court’s judgment on conviction of the crimes and measurement of penalty.Considering the big difference of remedy procedure between China’s mainland and Taiwan province, we must improve environment of criminal retrial procedure as we use the understanding for reference, so the supporting system for correctly applying the new evidence needs to be perfected.First, the legal concept of the new evidence needs to be perfected. As for the evidence without legally being collected or cross-examination should be defined to be evidence with no possibility of investigation so it can be the real new evidence. As for the subject of starting criminal retrial, court’s right to start criminal retrial should be abolished. And the defendant should be given equal right to apply to start criminal retrial as procurator while the effect of procurator’s counter-appeal to start criminal retrial is explicit and defined.The new evidence should be divided into evidence in favor of the defendant and the evidence against the defendant. The obviousness of the new evidence against the defendant should be further defined so that when the sentencing of possibly changed is small or the name of crime may be changed without changing sentencing, the new evidence is not obvious to be new evidence to start criminal retrial. When the application for criminal retrial in favor of the defendant starts the retrial, the retrial must strictly abide by the principle of “no more sentencing than original final sentencing”.Whichever the new evidence is, both procurator and defendant should have file examination right the moment the new evidence is acknowledged by court. The investigation procedure and review procedure of new evidence should be explicitly stipulated in law.
Keywords/Search Tags:criminal retrial, starting procedure, new evidence, supporting system
PDF Full Text Request
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