Study On The Starting Subject Of Criminal Retrial Procedure

Criminal retrial procedure, also known as the procedure for trial supervision, is an important process in the impartiality of the legal balance and stability of the law, every modern country under the rule of law have attached great importance, but political system and cultural tradition of each country is different, varying the specific provisions of the program. In the starting subject, the criminal procedure law of our country is different from that of foreign countries. In actual operation, as organs of the legal supervision of procuratorate protest caused the retrial cases than in the court's self starting retrial cases to much less, the defendant by the complainant and the successful launch of the retrial is rare. In this paper, the typical case as an example, based on the regulations of China retrial startup subject, the review of the criminal retrial procedure of our country start the main specification if there is a problem, what problem, with reference to the national legislation on behalf of the west, according to Chinese reality, the author puts forward suggestions for improvement. The full text is divided into three parts except the introduction:The first part from the two aspects of legislation and practice of our criminal retrial starting the main analysis of the status quo. Firstly, reviews the evolution of our country's criminal retrial procedure the main provisions of the criminal procedure law, although the number of provisions in the successive increases, the retrial procedure from simple provisions had become relatively perfect, but the rules of retrial startup subject does not change. According to the law, the starting subject of the retrial procedure of our country is only two, that is, the procuratorate and the court, the appeal of the parties (and their legal representatives and close relatives) is a source of starting the retrial procedure, and can not directly start the retrial procedure. Secondly, to our country retrial practice situation analysis, criminal retrial cases in China, not only the number is very small, the proportion is very low, which initiated by the parties to apply for retrial in criminal cases is very rare. In the starting of the retrial, the court initiated a number of more than the procuratorate; the parties as the main appeal of the retrial procedure is very small.The second part analyzes the main problems of the criminal retrial starting from the three aspects of the court and the procuratorate and the parties. The court's self starting retrial procedure violates the principle of "separation of control and trial", "not reporting to the contrary", and self denial of the referee, which will affect the authority of the court's judgment. As the main procuratorate retrial starting to bear the function of legal supervision is appropriate, but the limit is too small to start the scope and conditions. The parties have the right to appeal, and there is no discourse right in the start of the retrial procedure. The causes of concrete analysis of the problem, mainly is the establishment of the purpose of the criminal retrial procedure is not clear, excessive pursuit of substantive truth and the confusion of the civil litigation and jurisdiction.The third part combined with the comparison of foreign advanced experience and summary, put forward to perfect the criminal retrial starting body provided suggestions. With reference to the provisions on the starting up of the retrial procedure in Germany, France and the United States and the United Kingdom, the reference to the actual situation of our country, this part puts forward the specific ideas of the reform of the criminal retrial procedure in China:From the limit to cancel court retrial litigation, limited procuratorate retrial litigation, and give the parties the right to start the retrial.