Necessity And Conception Of Establishing Criminal Retrial Preprocedure

Criminal procedure plays a very important role in a national litigation system.The criminal retrial procedure in the criminal procedure as an extraordinary relief means is a re-examination of the validity and legitimacy of the effective judgment,which is an important part of the criminal procedure system.It plays the role of"natural judicial barrier" in maintaining fairness and justice,and also plays an important role in reshaping judicial credibility.It is really related to whether the purposes of law justice and social stability,the basic rights of citizens,the unified use of law and social equity and justice can be realized.What it safeguards is the basic human rights and the dignity of law.But as a paradox existing in the criminal retrial system itself is,in the realization of fairness and justice and its disadvantages also nots allow to ignore,such as French and certainty of being sentenced to force damage,as well as a variety of reasons,including the lack of legislation,the differences of value concept,the system design flaws,more error,etc.)in the legal practice in our country in many parts of the criminal retrial system is not perfect,For example,the limitation,times,levels,reasons and conditions of initiating criminal retrial are unlimited.Second,China's criminal retrial procedure is also called trial supervision procedure,in fact,the two are not completely consistent,the criminal retrial procedure and trial supervision procedure are unscientific,should be distinguished;Finally,China's criminal procedure law stipulates that the subject of initiating the criminal retrial procedure can only be the people's court and the people's procuratorate,which only grants the parties and their interested parties limited right of appeal and limited right of litigation to apply for retrial withdrawal.In the final analysis,the parties are only the sources of the materials to initiate the retrial procedure and do not necessarily cause a retrial.This mode of relief procedure is not scientific and fair in the main body and has a strong administrative color.Similarly,there will be problems in realizing the legislative purpose of criminal retrial,so it is necessary to discuss the establishment of special initiation procedure to solve the shortcomings of the current retrial procedure.The first part of this paper introduces the theory and institutional origin of our country's criminal retrial system,analyzes the legislative theoretical basis of our country's current criminal retrial system and the evolution process of specific system on the whole,and then draws the root of the problems existing in our country's criminal retrial process and its specific performance in the system.The second part analyzes the existing problems in China's current criminal retrial system,seeking solutions to the existing system to change the drawbacks,so as to prove the necessity of establishing criminal retrial preprocedure.The third part analyzes the advanced experience in criminal retrial procedure from Anglo-American law system and continental law system.In the fourth part,the author puts forward the idea of setting up the criminal retrial preprocedure,and discusses it from the aspects of the institution setting and personnel composition of the preprocedure,the reasons for the review of the preprocedure to decide the initiation,and the limitation of the time and times of the application for retrial in the preprocedure as the starting point.Through the discussion of these four aspects,the author thinks that the introduction of criminal retrial preprocedure can avoid the malpractice of criminal retrial procedure to the greatest extent,and balance the relationship between the real fairmess and justice,the protection of human rights,the maintenance of the law's res judicature and determination.It is expected that these theories can be put into practice in order to solve the problens existing in the current system.