An Empirical Study On The Operation Of Criminal Procedure Appeal System

Criminal procedural appeal is a type of appeal aimed at promoting the judicial review of the legality of the lower court in the lower court.Domestic scholars have little attention to this system.Some scholars even wonder whether there is such a judicial decision in judicial practice,whether criminal procedural appeal has the value and significance of research.Is that really the case?What is the real situation of criminal appeals in China?What are the problems?How should we improve?The author intends to discuss these issues in this paper.It is hoped that through the research of this paper,it can promote the application of procedural appeal in judicial practice,so as to strengthen the judicial protection of procedural litigation rights of the parties.In addition to the introduction,the text is divided into three parts,the full text of a total of 29000 words.The first part examines the status of criminal procedural appeals.Through the Peking University magic database,the author retrieved nearly a thousand due to procedural errors and sent back to review the second instance referee instruments.After the analysis of these referee instruments,the author found that there are a certain proportion of judicial practice in China,due to the wrong case back to the retrial case,including a small number of parties to bring procedural appeal cases.Through analysis,the author found:First,the parties can successfully bring the procedural appeal of the situation very few,nearly two years only 100 cases or so.Second,the parties generally lack the necessary legal knowledge,and do not have to maintain their own legitimate procedural rights of the judicial concept.Moreover,they are more concerned about the substantive results of the verdict of the outcome of the procedural issues are not enough attention.Thirdly,the overwhelming majority of the Court of Appeals in the case of a second instance is conducted in a manner that does not proceed with the hearing,and mainly examines the issue of criminal facts,evidence and law,with procedural questions.Unless the impact of the facts of the case,the procedural violations are generally not too much concern.Fourthly,the grounds for referee in the second instance court apply the"relative procedural appeal grounds" of Article 227(3)and(5)of the Code of Criminal Procedure.Fifth,the court of second instance for the parties to the procedural appeal,either dismissed the appeal,to maintain the original verdict,or revoke the original sentence,sent back to retrial.The judicial review of the procedural rights of the parties in the second instance and the judicial supervision of the trial court are limited.The second part studies the problems and causes of criminal procedural appeals.The main causes of these problems are:First,the "heavy entity,light procedures" of the judicial concept of the prevalence of the parties and the public security officers of the procedural fair value of the lack of knowledge.Second,the criminal procedural appeal is not perfect,"absolute procedural appeal" only three,and "relative procedural appeal" judicial application of the standard is not clear,judicial practice in this master is not too strict is Too loose.Thirdly,the procedure of criminal procedure appeals is unreasonable.The object of the trial is limited to the judgment and ruling of the original trial,not including the "decision",and the way of hearing is mainly written.Fourth,the legal consequences of procedural appeals are too absolute,the court of second instance either dismissed the appeal,upheld the original verdict,or withdrew the original sentence,sent back to retrial.Fifth,the two trial system was unscientific,and there was no legal review procedure specifically for procedural appeals.The third part puts forward some suggestions to improve our criminal procedural appeal system.First,implement the concept of procedural justice.In the legislation to improve the relevant system requirements,the pursuit of the value of the process of the implementation of which,change the "heavy entity,light procedures" judicial system of the root causes of justice.In the judicial requirements of public security judicial personnel to strictly abide by the provisions of the criminal procedure,advocate the parties respect the judicial process,according to the law properly advocate legitimate rights.Second,improve the criminal procedural appeal of the grounds of appeal.On the one hand,it is necessary to extend the scope of the "Absolute procedural appeal grounds" and to include significant and significant procedural errors equivalent to those specified in items 1,2 and 4,such as violations of the jurisdiction of the trial,violation of the summary procedure Provides for breach of the provisions of the specified defense,as well as the omission of statutory trial proceedings or should be involved in the absence of a party to the case of trial and so on.On the other hand,it is necessary to clarify the judicial application of the "relative procedural appeal".The procedural errors of the Court of First Instance have a practical effect on the outcome of the judgment,that is,the causal relationship between the procedural error and the result of the referee,is sufficient to serve as the basis for the dismissal of the original judgment.Third,improve the proceedings of criminal proceedings appeal.On the one hand to expand the scope of the trial object to increase the "decision" of the review;the other hand,improve the trial,to expand the scope of the hearing,as long as the parties to the first instance of the referee found that the facts,evidence or legal application of objections,The appellant's opinion,that may affect the case conviction sentencing or fair trial of the appeal case,it should form a collegial panel,held a hearing.Fourth,the establishment of a wide range of procedural legal consequences,in the abolition of the original verdict,sent back to review the application of the case,to reject the appeal,to maintain the basis of the verdict,increase the original verdict,direct commutation of procedural legal consequences.Fifth,the establishment of a special legal review process,the parties to the application of the law on the appeal request,the Court of First Instance should be a preliminary appeal review,those who clearly do not have the grounds of appeal should be rejected,temporarily accepted,and In cases where there is a basic case of appeal,the Court of First Instance shall hold a hearing debate procedure to give the prosecution and the defense the opportunity to debate and state the opinion of the defense on the law.