The Reconstruction Of Criminal Retrial Cause In China

How to enact the criminal retrial cause, it directly relates whether the criminal retrial procedure can be filed, it also concerns the procedural justice and the legal certainty, etc. Therefore, how to enact the criminal retrial cause is a thing that balancing many conflicting values in criminal procedure, ultimately to make the criminal retrial procedure utmost reasonable and due. The principle of non bis in idem implies a high degree of respect for human rights and the pursuit of independent value for the procedure, which is maximizing the authority and the end of the substantial judgment. On the basis of introducing the principle of non bis in idem, we should set the cause for criminal retrial as an exception to this principle. Therefore, we can find a kind of dynamic balance between the stability and justice of the law. There are many defects on the legislation of the criminal retrial procedure in mainland China, whether the legislative style or the specific provisions is not satisfactory. In my view, China should reference the legislative style in Germany and Taiwan Province, using two articles to stipulate the criminal retrial cause, according to whether the criminal retrial is beneficial to defendant. Furthermore, Chinese criminal procedure law need to clearly stipulate the meaning of "exceeding the extent for measurement of penalty "and the identification of "fresh evidence", and using the more strict requirements to limit the criminal retrial, which is against to the defendant’s benefit.