The Legal Analysis Of The Procedure Of Handling The Case Of Xu Jingxiang

Xu Jingxiang case lasted 13 years,the whole case caused widespread concern of the public.However,the theoretical circles pay more attention to the qualitative and sentencing of the case,but there are not many articles to deal with the procedural problems in the case.In order to achieve any not indulge criminals,do not let any one innocent suffer unfair treatment to start the retrial procedure in the legal times did not make clear restrictions,leading to the practice of frequent start retrial.Xu case in two to start the retrial procedure is legal,but it is extremely easy to cause the waste of judicial resources,damage the stability of procedure and judgment of res judicata has a negative impact,resulting in damage to the interests of Xu Jingxiang.The law gives the procuratorial organs to exercise the right of withdrawing time is limited in the scope of prosecution to the court of first instance criminal judgment before,no criminal judgment during this period has no effective criminal judgment.In the judgment of retrial procedure is effective,not in the law endow the procuratorial organ with the right of withdrawing within the time limit,the retrial procedure of procuratorial organs cannot withdraw.Xu Jingxiang was arrested to be charged from the middle seven returned for supplementary investigation,last four years and ten months,the prosecution pre-trial custody is very serious.The "Xu Jingxiang case" as the goal of analysis,focusing on analysis of procedural problems in the case of Xu,Xu Jingxiang appeared in the case of repeated retrial,extended custody,withdrawal,abuse of the right of supervision of the implementation of the policy violated prisoners interests problems spread.Besides the beginning and ending of the body part consists of three parts,a total of 2 words:The first part,the basic situation of the case.The two part consists of processing the case introduction and case Jingxiang xu.The case handling procedures in the form of a list in detail,pointed out that the four procedures in this case,the problem is two times to start the retrial procedure,the retrial procedure of withdrawing prosecution,the prosecution during the extended custody and supervision of the implementation of policies.The article focuses on whether the four procedural issues are legal and reasonable.The second part is the analysis of the main procedural problems.First,the legalanalysis of the two retrial procedure.Because the law does not limit the number of retrial start,so the two start retrial procedure is legal.But from the angle of rational analysis,two times because of unclear facts,insufficient evidence to judge people remanded to the apparently caused a waste of judicial resources.At the same time,the two start retrial procedure causes the damage to the stability of the procedure,has brought the negative influence to the res judicata of the criminal judgment,and has caused the violation of the criminal.Secondly,in view of the retrial procedure,the procuratorial organ's withdrawal of prosecution,and the decision of non prosecution has no corresponding legal basis,which does not conform to the procedure of litigation and violates the principle of litigation.Furthermore,the prosecution of extended custody not only illegal,but also in custody of criminal suspects damage.Finally,implementation of regulatory policy will appeal as a basis for commutation violations of the interests of prisoners.The third part,Xu Jingxiang case need to reflect on the question.A number of retrial to make clear restrictions,because the law did not make provisions in judicial practice,which leads to a higher court case shall not commuted commuted to back to the court for a new trial to circumvent the problem,the trial court made the same decision,the superior court and remanded the case into the vicious spiral.Justice can not be realized.The number of retrial restrictions can refer to remand the provisions of the new criminal procedure law article 225 th of the provisions of the fourth paragraph.On the other hand for retrial procuratorial organ to withdraw,for non prosecution and prosecution pre-trial custody problems can be solved by standard exercise procuratorial power.For the retrial of the procuratorial organs for prosecution to the final decision,obviously is the procuratorial organs exercising judicial functions of ultra vires,in violation of the separation of prosecution and trial system.Furthermore,prosecutors in the prosecution phase,repeatedly returned to the public security organ for supplementary investigation and prosecution in pretrial extended custody,should be strictly in accordance with the laws and regulations on the exercise of the supplementary investigation,the implementation of responsibility to the provisions of extended detention,punishment of violation of legal procedures of the prosecutor.Finally,the court should establish judicial authority on the basis of defining the judicial power,protecting the litigation rights of the criminal suspect and the defendant,so as to realize the independence of the trial and realize the res judicata.