Reflection And Research On Prohibition Against Double Jeopardy In Misjudged Criminal Cases

Wrongful conviction is a global criminal justice problem,and China is no exception.In China,the misjudged cases have the following characteristics:(1)the upper and lower courts "kick the ball" each other,and the higher court repeatedly remands the case for lack of evidence;(2)the defendant is re-registered or prosecuted after the court's verdict of not guilty takes effect;(3)in extreme cases,the first trial will occur in the municipal intermediate people's court,which will be tried by the district and county people's court after the appeal is remand for retrial;(4)after the court makes a judgment of not guilty,the procuratorate files a protest;(5)re-prosecution after the procuratorate makes the decision not to prosecute or re-filing the case with the public security organ;(6)the procuratorate shall re-prosecute the case with the same factual evidence after the withdrawal of the case,etc.The occurrence of these wrongful cases is related to the practice confusion caused by the absence of the principle of prohibiting double jeopardy in China.As an international criminal procedure rule,the principle of prohibition of double jeopardy is stipulated in many international treaties.China signed the International Covenant on Civil and Political Rights of the United Nations in 1998,making the prohibition against double jeopardy a hot topic in academic research and social discussion in recent years.Throughout the past research literature,more or less all have introduced the prohibition against double jeopardy,but most of them are only established in a certain country or legal system,lacking comprehensive research.From the perspective of the study of wrongful convictions,this paper attempts to establish a standard of comparative norms and different limits by integrating the regulations on the prohibition against double jeopardy in the legislative and judicial practices of various countries.Based on the collection and data analysis of China's wrongful conviction cases in the past 30 years,this paper studies what are the violations of the principle of prohibition of double jeopardy in the misjudged cases in China's judicial practice,and on this basis,provides a reform plan for China's future criminal justice.This text is divided into eight parts.The first part is the introduction,including the background of the topic and literature review.In the literature review,the basic connotation of prohibition against double jeopardy and non bis in idem is introduced and compared.Then from the perspective of the development trend of the two principles and the protection of the rights of the defendants,the prohibition of double jeopardy is more in line with the legislative intention of the international human rights convention on the protection of human rights.The second part is the research on the principle of prohibition against double jeopardy by scholars at home and abroad.According to the domestic scholars' research on the double jeopardy,a definition of this principle is summarized.In the research of domestic scholars,most of them believe that the prohibition against double jeopardy only prohibits the re-prosecution and trial after the court judgment takes effect;Some scholars believe that it should also include the decision of no prosecution made by the procuratorate;Some scholars believe that the re-prosecution after the procuratorate withdrew the prosecution,the higher court repeatedly remanded retrial also belongs to the prohibition against double jeopardy regulation.From this point of view,domestic scholars have different understandings of the specific content of prohibition against double jeopardy,and have not yet formed a unified understanding.Most of the studies of foreign scholars on the prohibition against double jeopardy focus on the history of the development of double jeopardy,the factors that constitute double jeopardy,such as danger,the same offence,and the study on the changes of the identification standards of these factors.According to judicial precedents,some scholars believe that the acquittal judgment,the judge's decision to terminate the lawsuit in the trial,and the court of appeal overturning the original judgment because the evidence is insufficient to support the conviction in law can prevent the retrial for the same offence.This is an important basis for the study of prohibition against double jeopardy.The third part starts from the criminal legislation and judicial practice of various countries,selects representative countries of all continents for research,and summarizes the comprehensive definition of the principle of prohibition against double jeopardy in various countries.The provisions on the prohibition against double jeopardy vary from country to country,but all stipulate the effect of the court's effective judgment on the prohibition of re-prosecution,which can be retried in favor of the defendant.Of course,there are many different provisions in the legislation and judicial practice of various countries,such as the provisions of the Russian Criminal Procedure Law on non-prosecution or non-prosecution of criminal cases made by investigators,investigative organs and procurators,which are the basis of termination of prosecution.In American judicial precedents,the judge's decision to terminate the lawsuit and the court of appeal's decision to overturn the original judgment due to insufficient evidence can prohibit the retrial.The fourth part,according to the discussion of scholars at home and abroad and the practice of legislation and judicature abroad,the concepts of jeopardy,first jeopardy and second jeopardy in the prohibition against double jeopardy are comprehensively expressed,and then a concept of prohibition against double jeopardy which can be applied to every country and has universal significance is summed up,that is,the re-prosecution and trial can be prohibited only after the court judgment comes into effect.At the same time,it goes beyond the conclusion that previous scholars paid too much attention to the principle of prohibition against double jeopardy in the conclusion of the common characteristics in different countries,and conclude a complete and comprehensive definition of the principle of prohibition against double jeopardy,that is,besides the effective judgment of the court,the decision made by the public security and procuratorate not to initiate criminal cases or not to prosecute,withdraw the prosecution's decision,the judge make a decision on the termination of litigation in the trial,the court of appeal such as insufficient evidence to overturn all can be used as a ban on the basis of prosecution and trial again.In the fifth part,by examining the behavior of the judicial offices in judicial practice in China,and comparing with the concept of prohibition against double jeopardy,the author concludes the specific behaviors of the judicial office public in violation of prohibition against double jeopardy in judicial practice in China.For example,after the public security and procuratorate make the decision not to file a case or not to prosecute,they file the case again or pursue prosecution;After the court makes an effective judgment,the public security organ or procuratorate files a case,files a lawsuit or protests again;In the case of appeal,the court of appeal on the grounds of unclear facts and insufficient evidence to revoke the original judgment remanded for retrial.The sixth part is about the characteristics of violating the principle of prohibition against double jeopardy in China's wrongful criminal cases.On the basis of the behaviors violating the double jeopardy in the cases,this paper codes and analyzes the collected cases,and obtains the offices,stages and the proportion of the behaviors violating the principle of prohibition against double jeopardy in the cases.It is found that the wrongful conviction cases in our country has such characteristics as the extensiveness of the violation of the organ,the comprehensiveness of the stage,the diversity of the expression,and the diversity of the result of the wrongful conviction cases.In the cases collection,mainly for the case can be found on the Internet.These cases may come from newspapers,interviews with parties by journalists,or from refereeing documents.Although the scope of the search is very large,many contents are repeated,and some information is inconsistent,which leads to the failure of the key information needed in many cases and affects the conclusion of case analysis.Therefore,the findings of this paper can only be said to be in a relative sense.If the introduction of the real situation of the case can be more detailed and accurate,I believe the conclusion will be more authoritative.The seventh part,on the basis of case collection,collation and analysis,summarizes the reasons for the violation of the prohibition against double jeopardy in wrongful conviction cases,including the intervention of the political and legal committee,the petitions of the victims and their families,torture,illegal procedures,public opinion and media interference.The emergence of these practices in criminal proceedings is not only a violation of the prohibition against double jeopardy,but also a destruction of China's criminal justice system.It is hoped that such a situation can be avoided in the future criminal justice.The eighth part puts forward some suggestions for the legislative and judicial perfection in the next stage from the perspective of misjudged criminal cases.The prohibition against double jeopardy has now become an international judicial principle recognized by most countries in the world and provided for in the constitution and the code of criminal procedure.Although China has signed the International Covenant on Civil and Political Rights,its domestic legislation has not been ratified,let alone stipulated in the constitution and criminal procedure law.Therefore,in the next step of criminal justice reform,it is suggested that China first make the ratification procedure for the International Covenant on Civil and Political Rights to establish the image of China's compliance with international treaties.Secondly,the prohibition against double jeopardy is stipulated in the constitution,which upgrade the defendant's right not to repeat prosecution and trial into a constitutional right.Finally,for all kinds of behaviors violating the prohibition against double jeopardy in judicial practice,specific provisions should be made in the criminal procedure law,and the behaviors violating the prohibition against double jeopardy should be clearly prohibited in judicial offices,in the hope of realizing the protection of the rights of defendants in China's criminal proceedings.The establishment of the principle of prohibition against double jeopardy is conducive to better protecting human rights,improving litigation efficiency and maintaining judicial authority in criminal proceedings.Although our country has not established the principle of prohibition against double jeopardy,this principle has provided the direction and goal for the reform of our country's criminal procedure law.