Analysis On The Application Of Substantive Law In Retrial Procedure Of Xu Qingyuan Accepting Bribes Case

In the first procedure and the second procedure of the criminal trial,the judgment is not effective.According to the "Criminal Law" article 12(1),the old and the light principle can be applied in the first procedure and the second procedure.There is no controversy in academic and practical territory.It is still controversial whether new law can be used in retrial judgment in the academic and practical territory.The regulations of“Criminal Law Amendment(9)"and relevant judicial explanation are beneficial to the defendant.Some retrial courts use old law with various reasons.Some retrial courts use new law with "Criminal Law" article 12(1)and the regulations of "Criminal Law Amendment(9)".Retrial court hold that first judgment is false on Xu Qingyuan accepting bribes case.The defense party and the prosecution hold different views on the appliance of law.The retrial court agrees with the prosecution and holds using the old law in retrial.But the retrial court can't specify the specific basis for using the old law.The reason of the above dispute is that the content of article 12(2)is unclear.According to "Criminal Procedure Law",if retrial court ascertains that the original judge is false,then retrial court will revoke the original judge and make a new judge.But the original judge is valid before new judge goes into effect and the appliance of original law is allowed.Some speakers can't understand the purpose and the significance of "Criminal Law" Article 12(2).Then they hold that the new law can be used in retrial judgment.No matter whether the original judge is right or false,the original law should be applied in the retrial procedure.On the one hand,it conforms to the provisions of "Criminal Law" article 12 and its judicial interpretations.On the other hand,it conforms to the principle of a legally prescribed punishment,the principle of equality,the rules of litigation limitation and the rules of retrial procedure.And it is helpful for the legal authority.