Empirical Research On The Commutation Of The Second Instance In Criminal Procedure

According to the Criminal Procedure Law, when the people's court tries a criminal case, it adapts the Two-tier Trial System. “ No Remedies, No Rights”, the defendants can appeal to Court of Second Instance when they refuse to accept the first-instance judgment according to the Criminal Procedure Law.To the defendants, they can safeguard their legitimate rights and interests by the appeal.The Court of Second Instance can resolve the dispute through reviewing an appealed case, and that also can obtain better law result and society result.There are there forms of judgment when the the court deal with a appealing case:Upholding,Sending Back,Commuting.The court reviews the facts, evidence and applicable law of an appealing case on the principle of full review. The case that facts are not clear and essential evidence is inadequate case will be sent back, or commuted by the court after hunting out all the facts.The applying of commuting in the second instance not only can remedy the first verdict but also prevent the occurrence of misjudged cases.However, the function of commuting is not reflected in the second instance and the problems exposed seriously affect the function of the second instance of relief.I hope this article will be helpful for improving the correction capability of the second instance.the article does not include the introduction and conclusion.This paper is divided into five parts:?Part I:This paper takes the second instance's trial situation of the Intermediate People's court of A City, G Province as an example. Comparing the difference application situation of the Upholding,Sending Back and Commuting before and after the modification of the Criminal Procedure Law. Analyzing the changes of Commuting in the second instance before and after the modification of the Criminal Procedure Law. The times of Sending Back has been limited after the Criminal Procedure Law amended. By observing data, analyzing the current situation of the Commuting in the cases that appeal again after Sending Back.Part II: Through analyzing the Commuting data and referring to files, summarizing that the main basis for Commuting in the Intermediate People's court of A City-- Facts are not clear and essential evidence is inadequate; Erroneous law application; Discover new facts and new evidence; Surrender and Meritorious service; Commuting for victim-offender reconciliation. Meanwhile, studying the application of Commuting under current judicial practice with the combination of relevant cases.Part III: This paper mainly from the lack of error correction capability of second instance, the reasons are not inadequate for commuting, inappropriate application for the Criminal Policy of “temper justice with mercy”, Sending Back, formalism of trial to analyze the problems that caused by Commuting.Part IV: Analyzing the impact of evaluation mechanism and "Misjudged cases" accountability mechanisms to the commuting in the second instance.Part V: Caving some advice for the problems that caused by the Commuting in the second instance:1.Improving the legal stipulations regarding judicial proceeding;2.Applying the Criminal Policy of “temper justice with mercy” properly.3.Improving the content of Send Back;4. Commuting directly to cases of "unclear facts, insufficient evidence";5.Improving hearing trial system; 6.Improve the judicial assessment mechanism.In order to improve the function of commuting and enhance the error correction capability of the court in the second instance.