Criminal Retrial Theory In System

The thesis is about the theory and system of the criminal extraordinary appeal. In this theory, it argues about the prinicple of res judicata and the double jeopardy prohibition. Furthermore, the system talks mainly about the criminal retrial procedure and extraordinary appeal of civil law system. At the end of the thesis, the author puts forward the design of our country's criminal procedure for trial supervision. There are many complicated conflicts existed in the criminal extraordinary appeal. If the retrial is opened, the res judicata will be seriously damaged. And if the output of the retrial is unfavorable to the accused, it will contradict with the principle of prohibition double jeopardy. All existed conflicts are unavoidable, but to cope with them directly and to balance them in order to keep various interests balance. It is easy to state in the theory, however, it is often confused in the practice. In order to get rid of this dilemma, through exhausting all kinds of mistakes, the author thinks that the mistakes corrected by the criminal retrial procedure have the following features: errors in fact, harmful errors and extrinsic fraud. The principle of double jeopardy prohibition was originated and developed in the Anglo-American law. The fifth Amendment of U.S. Constitution states: "[N] or shall any person be subject for the same offence to be twice put in jeopardy of life or limb." The preservation of the finality of judgments is commonly said to be the primary or at least a purpose of the double jeopardy bar. That means, the constitutional prohibition against double jeopardy was designed to protect an individual from being subjected to the hazards of trial and more than once possible conviction for an alleged offense. The underlying idea, which is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and powers should not be allowed to make repeated attempts to convict an individual for an alleged offense. Because the individual have to subject himself to embarrassment, expense and ordeal, meanwhile, compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though the innocent he may be found guilty. The double jeopardy clause is based on the presumption of innocent and keeping balance between the prosecution and the accused, the former aims to check the abuse of judicial power, the latter aims to limit the re-prosecution. If the government may re-prosecute, it will gain an advantage from what it learns at the first trial about the strengths of the defense case and the weakness of its own. So the double jeopardy prohibition emphasizes on the re-prosecution, not double punishment. The clause does not prohibit the re-prosecution absolutely, but strictly limit the premise of the re-prosecution. In a case to be tried by a jury, jeopardy attaches when the entire jury has been selected and has taken the oath required for service at trial or the first witness has sworn. However, at that time, fact is still not to be tried, so the jeopardy does not take place. In the long history of the double jeopardy clause, it has developedsome exceptions to balance the conflicting values, but the clause has never deviated from its essence. It is necessary to mention the difference existed between the principle of double jeopardy prohibition and the principle of ne bis in idem. The former application to which the jeopardy is attached, and the latter one to which the res judicata takes place. This reflects their difference in values. ne bis in idem concerns about the res judicata and the substantial truth. The double jeopardy principle cares for the human rights and gives the procedural bar to the re-prosecution and double punishment. Now the ne bis in idem has been prescribed in many States' Constitutions and in the international human rights Covenants. The civil law's criminal retrial procedure includes two divisions. The first division is called Germany division, which includes...