Research On The Retrial System Of Criminal Second Instance

Sending back for retrial is a way for the second-instance court to handle the case in criminal proceedings.It not only helps the court of second instance to supervise the trial of the court of first instance,but also helps protect the legitimate rights and interests of the parties,especially the accused.In judicial practice,the re-examination system of the criminal second-instance has played an important role in ensuring the quality of cases,reducing false and wrong cases,and protecting the legal rights of the parties.However,the system has many problems in legislation and judiciary,so it has been controversial.This paper by adopting the research method combining theory and practice,starting from the controversy of the legal review on the criminal review system,and through the investigation of its actual operation injudicial practice,sums up the problems and their causes in various aspects of the legal system in China.Meanwhile,through the study of relevant systems in some foreign countries,it puts forward suggestions for the perfection of the criminal netrial system in China.In addition to the preface and conclusion,the main body of this article is divided into four parts:The first part is the investigation on the judicial status of the criminal retrial system.In this part,the author analyzes the criminal second-instance cases of the Intermediate People's Court of Z city from 2014 to 2017,and examines the operation status of the retrial system in judicial practice through detailed analysis to the retrial cases.Among them,the author focuses on the analysis of the phenomena as well as the reflected legal issues where there are more applied sistuations due to physical causes instead of procedural causes,where the second-instance court improperly applies the right to re-review,where the judgment document makes vague statements for retrial reasons,and where the court opening rate is low before making retrial rulings.The second part is the analysis of the reasons for the problems in the second-instance re-review system.This part mainly explores the root causes of the problem of the retrial system of criminal second instance in China from the aspects of value orientation,legislative norms and judicial practice.The article argues that the value orientation of state-basedism,the imperfect reasons and procedures of retrial system,occupational risks,interpersonal relationships,and the minds that Judges shirk responsibility and avoid contradictions are all important reasons for problems of the retrial system in practice.The third part is a comparative study of the re-examination system of foreign second-instance trials.This part mainly introduces the relevant provisions of the retrial system of criminal second instance in the United States,the United Kingdom,Germany and Japan,and evaluates some of the provisions.The fourth part is the improvement of the retrial system in China's second instance.On the basis of combining the judicial status quo of China and the experience of foreign legislation,the author puts forward some specific suggestions for the problems existing in the second-instance re-examination system in China.First,change the concept of the national standard,and pay more attention to the protection of human rights when perfecting and applying the system for re-examination.Second,for cases with unclear facts and insufficient evidence,the court of second instance should directly change the judgment or maintain the original judgment after the trial.In special circumstances,they may be sent back for retrial.Thirdly,the degree of procedure violation shall be determined,and the application scope of the retrial shall be limited.Fourthly,the court of second instance shall be able to give the defendant the choice right when it is sent back for retrial due to procedural violations.Fifth,limit the application scope of the re-examination of internal letters and standardize the content of the ruling.