On The Establishment Of The Principle Of Prohibiting Double Danger In China

The prohibition of double jeopardy is an old litigation principle,that is,no one can be prosecuted,tried and convicted more than twice for the same crime.This rule plays an extremely important role in balancing the state's control over crime and the protection of the individual freedom of citizens,especially when citizens are facing countries many times stronger than them.It provides a guarantee for individual citizens from repeated prosecution and trial of the same crime by the government.This rule is established by the criminal procedure system of most countries in the world,and has been adopted by international human rights conventions such as the Covenant on Civil and political rights and the European Convention on human rights.The traditional theory of criminal procedure in China is still limited.Therefore,the principle of prohibiting double danger has not been stipulated in legislation.After the amendment to the criminal procedure law in 2012,the amendment mainly reflects the need to punish crimes and protect human rights.However,many contents are not perfect enough,and many basic principles of modern rule of law have not been established,that is,the absence of the prohibition of double danger rule,which makes theoretical scholars feel very sorry.The wide range of criminal judicial practice in the world has also proved the universal truth of the prohibition of double danger rule.The contemporary human rights convention defines the prohibition of double danger rule as an international norm.Therefore,this paper uses historical research,comparative analysis and other research methods to study the prohibition of double jeopardy rules in common law system,trying to explore a path suitable for China's national conditions.The prohibition of double jeopardy is a basic principle of common law system.The principle of prohibition of double jeopardy means that the penalty power of the state has been exhausted,so it can't be exercised repeatedly,but its real purpose is to protect the legitimate rights of the accused from being infringed,so as to prevent the judiciary from abusing the power of the state.In the criminal trial,our country pursues the consistent policy of "seeking truth from facts and correcting mistakes".In the judicial practice,there are often some violations of the legitimate rights and interests of the prosecuted.For example,after the prosecution by the procuratorial organ,the court finds that such cases belong to cases with unclear facts or insufficient evidence,and the defendantshould be acquitted,then the procuratorial organ will withdraw the prosecution and conduct the prosecution after the supplementary evidence.For another example,if the court finds that its judgment is wrong,it will try the case again through the trial supervision procedure,and cancel the legally effective judgment,and make a heavier judgment than the original penalty,or even re sentence the death penalty.Therefore,it is necessary to study the establishment of the principle.In the process of legislation,we not only need to base ourselves on national conditions,but also need to look at the world,learn from the excellent achievements and experience of foreign countries,and then combine our national conditions to make laws.The principle of prohibition of double jeopardy is a very good basic principle of criminal procedure,which can be used for reference in our country,but it can't be copied completely.It should be applied according to our national conditions.The principle of double jeopardy prohibition is embodied in the criminal procedure law of common law countries,the principle of non bis in idem is embodied in the criminal procedure law of civil law countries,while in China,it is embodied in the criminal procedure law by combining general principles with special exceptions.The application of the principle of prohibition of double jeopardy in Criminal Procedure Law in Britain is very mature.This basic principle can not only prevent the state from abusing its power,but also provide institutional protection for the exercise of state power,and enable the accused to enjoy the most basic human rights protection.However,the principle of prohibition of double jeopardy cannot be absolutized.It is necessary to provide appropriate exceptions on the basis of general principles so as to make better use of this basic principle in the field of criminal procedure.In the reform of China's criminal procedure system,it is necessary to establish the principle of prohibiting double danger.This paper mainly studies the establishment of the principle of prohibiting double danger in China.Specifically,it describes the basic meaning of the principle of prohibition of double danger,the definition of the concept of "the same crime",the relationship between the principle of prohibition of double danger and the principle of res judicata and the principle of non bis in idem,and the comparative analysis of the principle of prohibition of double danger applied abroad.It also discusses the necessity and feasibility of the establishment of the principle of prohibition of double danger in China,as well as the concrete embodiment of the principle of prohibition of double danger in the process of its establishment.Under the background of the InternationalCovenant on Civil and political rights and the formulation and implementation of China's constitution,this paper discusses the value of the principle of prohibiting double jeopardy in the field of criminal procedure law from the perspectives of respecting and protecting human rights,justice,justice and efficiency.