Criminal Appeals Procedure

This thesis is intends to study on the criminal appellate procedures from the macro and comparative perspective, to explore the existing problems of China's current appellate procedures, and to propose and argue for the thoughts and ideas on improving China's appellate procedures. It consists of seven chapters. The first three chapters focus on theoretical analysis on the basic concepts, features, functions and general principles and rules of criminal appellate procedures, and the last four chapters focus on the study of the initiation, the hearing and the decision-making of the second instance and the third instance while taking the judicial decisions as object of the research. Chapter One is the introduction. It firstly abstracts and concludes the concepts and features of appellate procedures, then analyzes the functions of the appellate procedures, finally points out the importance of the study of criminal appellate procedures. The appellate procedures studied in this thesis include not only the appeals from the accused but also protests from public prosecutions. The thesis argues that the functions of the appellate procedures are (1) correction of mistakes; (2) prevention of mistakes; (3) conciliation and persuasion; and (4) application of law in unified standards. There has been evident improvement while examining the changes of China's criminal procedural law. However, the appellate procedures basically remain at the original level, so there is urgent need to improve criminal appellate procedural legislation, regulate judicial activities and develop and enrich theoretical research. This is also the meaning of this study. Chapter Two presents five principles of appellate procedures. The first principle is the principle of guaranteeing judicial fairness. Chapter two defines the meanings and requirements of judicial fairness in criminal process, and then argues that compared with first instance trials the appellate procedures have special missions and play specific roles in maintaining and realizing justice. The second principle is the principle of increasing judicial efficiency. It discusses judicial efficiency in threeaspects: establishing 'trial level system'1, selecting review types of appellate procedures, and deciding the scope of review. It argues that the design and reform of appellate procedures should take the increase of judicial efficiency as one of the legislative and judicial principles. The third principle is that of independence of courts at different tiers/instances. Judicial independence requires the independence between courts at different tiers/instances, which is also the necessary requirement for realization of judicial fairness. Without independence of courts at different tiers/instances, there is no point to establish appellate procedures. The fourth principle is that of limited review. Through comparative study between the full review and limited review from three aspects, it illustrates that the later prevails over the former and that this should be used as the principle for our future appellate procedures. Accordingly it makes suggestions on reforms on this matter. The fifth principle is principle that an appeal court may not increase the criminal punishment on the defendant who appeals. It firstly reviews the origin and implication of the principle and its introduction in China in order to illustrate its historical status in appellate procedure. Then it explores the basis of this principle in jurisprudence aspect, comments on three main theories, and points out they are not repulsive or contrary to each other, but jointly constitutes the jurisprudence basis for this principle. Finally, it makes suggestions on how to improve this principle with the consideration of China's legislation and judicial practice. Chapter Three deals with the 'trial level system' from the building up of general principles to the reconstruction in detail on the basis of the recognition that the 'trial level system' is the vehicle of carrying out appellate procedures. It points out that th...