A Study On The Relief Procedure Of The Defendant In Criminal Default Trial System

In order to combat corruption,strengthen overseas pursuit and escape,and make up for the deficiencies in illegal income confiscation procedures,China officially established the criminal default trial system on October 26,2018.This system is a product of balancing litigation efficiency and fair trial.In criminal trial in absentia,it involves the deprivation of the accused’s right to participate in the procedure.A complete remedy procedure is an inevitable requirement to guarantee the accused’s right to participate in the procedure and provide effective relief.However,the legislation of China ’s criminal default trial system is too principled and the guarantee mechanism is insufficient.The remedy procedures of the defendant ’s appeal procedures,objection procedures and retrial procedures are more general,and there is no accumulation of relevant judicial practice experience,which is applicable in judicial practice.The situation is not ideal.Studying the defendant’s relief procedure will not only help to improve the criminal default trial system to increase its applicability,but also help protect the rights of the default defendant in the process of applying the criminal default trial system.Therefore,through the study of the defendant’s relief procedure in the criminal default trial system,this paper studies the existing problems and discusses the feasible and perfect countermeasures.First,clarify the concept and characteristics of the defendant’s relief procedure in the criminal default trial system.First of all,what should be clarified when clarifying its concept is that the remedy procedure of the defendant in the criminal default trial system in this article only refers to the remedy procedure at the trial stage,and does not include the pre-trial relief procedure.The remedy procedure of the defendant mainly includes appeal procedure,objection procedure and retrial procedure.Secondly,the defendant’s relief procedure in the criminal default trial system has the characteristics of rights,hindsight and subordination,and its scope of application and rights are different from the defendant’s relief procedure in the ordinary criminal procedure.In order to effectively protect the rights of the accused in criminal trials in absentia,realize judicial justice,and maintain social order and judicial authority,it is necessary to set up a defendant relief procedure that is different from the trial by trial.Secondly,the relief procedures of the criminal absent defendant and the criminal present defendant are compared,and the difference between the two relief procedures and their reasons are studied.This is the premise of studying the relief procedure of the criminal absent defendant.First of all,the provisions on the right of appeal are different.First,the requirements for the object of appeal are different.Compared with the criminal defendants,the criminal absentee can only appeal the ineffective judgment and cannot appeal the ineffective ruling;the second is the appeal of the close relative of the defendant Different jurisdictions,close relatives of the criminal absent defendant have an independent right of appeal and the close relatives of the defendant present do not enjoy it;secondly,the relief procedures for the effective judgment are different.First,the nature and purpose of the procedure are different,and retrial is a kind of error correction.Wrong procedure,and the objection and retrial procedures are designed to protect and restore the parties ’right to participate in the procedure.The second is the different starting method and starting effect.The criminal absent defendant can start the retrial procedure by exercising the right of objection,and the criminal defendant present only has the right to file a complaint,and cannot achieve the determined effect of starting the retrial procedure.Through the above comparison,it lays a foundation for the subsequent analysis and study of the problems that the defendant’s relief procedure still needs to solve in the system of default trial.Third,based on the comparative analysis of the relief procedures of the criminal absentee defendant and the present defendant,combined with the legislative status quo of the defendant relief procedure in China’s criminal absentee trial system,the existing problems are studied and analyzed.First,through the study of the legislative norms,the main body of appeal and the time limit for appeals in the appeal process,it is found that the normative framework of the appeal process is relatively combed.Among the provisions of the object of appeal,the absence ruling is not listed as the defendant ’s object of appeal.The provisions on the right of appeal to the subject of the appeal are too general and do not specifically specify the period of appeal for the absent defendant.Since the defendant flees abroad,the ordinary procedure provides The appeal period is not conducive to the exercise of the defendant ’s right to appeal.Secondly,through the research on the procedure,duration and limit of the objection of the default judge,it is found that the mechanism for exercising the objection is not perfect.Finally,through the study of retrial,it is found that the semantics of retrial is ambiguous and unclear in our country.At the same time,it lacks the supporting rules of retrial and the retrial procedure after the parties return to the case,which leads to the difficulty of the entire retrial procedure.The research on the defendant’s relief procedure in the criminal default trial system still has many controversies and problems in theory and in practice,which need to be further resolved in the research.It should be targeted to improve the standardized appeal mechanism in the legislative provisions of the right of appeal,the subject of the appeal and the duration of the appeal;improve the procedure for raising the objection right,the duration of the exercise and set up a differentiated objection system;from the retrial procedure positioning and supporting rules To establish a complete re-examination system in terms of local development and improvement of procedures.Make a more complete design of the defendant’s relief procedures than ordinary procedures to improve its applicability and operability,taking into account the efficiency of litigation and fair trial.