Criminal Appeals

The appeal system is the important component of the criminal proceedings system. It is undertaken to safeguard the party's legitimate rights and interests, It is used to guarantee such functions in many aspects as the exactness of the judicial judgment and unified law application, so it is a very important function in the whole judicial system. This article is based on the reform of China and foreign countries' criminal justice, it has gained the opportunity of revising the criminal procedure law of our country, it helds that examining the system of the third instance as final as the foundation, the essay has used the method of comparative analysis and positive analysis, the author has studied and probed into the basic principle of the criminal appeal system and the general characteristics of appealing system and differences between the main common law counties and main civil law countries. Then the article points out the characteristic, defects and origin causes of our country's criminal appeal system, and then puts forward the concrete design of the criminal appeal system for its reconstructions :to establish. The article, except that foreword and ending-word, is formed by five chapters, totally about 200,000 words.The part of the foreword has explained the purpose of the selected title, the methods of the meaning of the article.Chapter one is an introductory part, it explains the definition of the criminal appealing and such fundamental issues like the relation and status between the criminal appealing system and the trial grades and the position of the criminal appealing system in the whole criminal procedure process. The article has carried on the analysis on semantic and linguistic context to the concept of appealing at first, then points out that from the perspective of the regarded party, we can fully understand the criminal appeal system's nature as a remedy and the original purpose of the regards party's appeal, fully pay attention to the party'sappeal suggestion, and offer the practical guarantee to the party's right of appealing. From the perspective of the people's court, the appeal concept lets us know the whole criminal appealing system macroscopically, so we can easily define the values, functions, structures and the principles for reconstruction of the criminal appeal system and the importance of the appellate procedure in offering to regards parties remedy and unifying the law application in the practice. On the basis of semantic analysis, the article points out that different criminal appeal systems in different countries should be talked about in different linguistic context range. The article thinks that the criminal appeal system has close ties with trial grade systems, and the latter is a important carrier of the former, and meanwhile the latter supplies foundation and space for the former to operate. Whether the criminal appealing system functions is good or not and the regarded party can obtain sufficient remedy or not both depend on what kind of trial grade system one county establishes. That's to say, the pattern of trial grade system determined the number of times regards parties may appeal and range which the higher level of court examine. But because not every case must be gone through the second instance procedure or the third, so the criminal appeal system's reliance on the trial grade system is a kind of relative determined relation. The article also points out that trial grades system includes two types: the static trial grades system and the dynamic one. The static part namely vertical structure of the court refers the relation between the superior and the subordinate court; Dynamic one determines one case should go through how many courts before it comes to the end, which is the core issue on the trial range of jurisdiction of the appellate court and ensuring with party's appealing rights. On the issue of trial grade system, various countries regard fairness and efficiency as the theoretical foundation and value goal, and generally set up the Pyramid-structured system: the system of the third instance as final. Thisstructure requires the courts at different levels deal with the appealing on law application and the appealing on facts respectively. So in this way, the appellate procedure can find an even point between the individual interests and public purpose, and enjoy its error-correcting function and unifying function on law application.While expounding the important position of the appellate procedure, this chapter points out the first trial procedure, the appellate procedure and the reviewing procedure consists the whole criminal justice system. Under the whole goal of criminal justice, the three procedures have undertaken different functions and played the role of one's own procedures separately. First trial procedure's direct function lies in fact correcting and disputes asserting, and it is the most important and fundamental judicial procedure., the appellate procedure is "a quality control device "and remedy is its basic nature . And the error-correcting function and unifying function on law application are its most important function. The appellate procedure and the reviewing procedure both have error-correcting functions too, but the two are different obviously in the concrete nature and the error-correcting range. The appellate procedure regards with the mistakes of the original sentence which does not come into force, does not involve the stability of the law, so it belongs to the normal trial grade system. While the reviewing procedure deals with the mistakes of the judgments which have come into force already, which is the special procedure out of the normality and its error-correcting range is very limited. So in order to ensure the lawful rights of the regards party and prevent the wrong judgments, we should pay more emphasis on the measures adopted at advance, not on the remedying afterwards, can't assault normal trial grade systems by using the criminal appealing system so often.Chapter two is the principle part of criminal appeal system with asystematic discussion mainly about appeal value, function, attribute of right of appealing and its guarantee. The article is on the basis of carrying on general investigation to the value of the criminal procedure process at first, putting forward the fairness , efficiency and right remedy with the value goal that the system pursues , especially when our country put human rights into the Constitution, emphasis on remedy of right has a realistic meaning even more. The author thinks the criminal appellate procedure is undertaking the special historical mission in maintaining the entity justice with justice procedure. The realization of the efficiency value goal depends on the establishment of trial grade system, allocation of cases and judicial disposition between the superior court and the subordinate court, procedure of appealing system and quantity of appealing cases and following precedent etc. On the value of remedy of right, the author mainly discusses the relationship between remedy and guarantee of human right and the Constitution .And appellate procedure's right remedy value concretes especially on this aspect. The article points out, every value goal in criminal appealing system is harmonious sometimes and contradictory and one side of conflict as well. So the design of criminal appealing system impossibly realize all value goals equally, and only can weight through every value goal, coordinate and choose, and try to get the overall balance of the interests of various fields, in according with the lawsuit purpose and category of the principle. So in this way can we design the relatively rational globosity framework of the appellate procedure, and then realize the pursuit of the value goal on consideration of different situations of the case in concrete procedure operation.Secondly, the article has explained the four major basic functions of the criminal appealing system , namely the function on correcting errors, the function on unifying the application and explanation of law, the function onrestricting procedures , and the function on releasing and absorbing the complaints of the regards parties. Two major important functions of the criminal appealing system, which is different from the first trial procedure, are the function on correcting errors and the function on unifying the application and explanation of law. The article uses the concrete data to state the error-correcting function and the function on unifying the application and explanation of law of the appellate procedure. Then the article points out the examination on the cases by higher-quality judges in higher level of courts and in the way of collective discussion can ensure the function on unifying the application and explanation of law to the maximum extent. On the basis of describing these four basic functions, the article has analyzed the different emphatic points of the functions of different appellate courts, then points out that the error-correcting function and the function on unifying the application and explanation of law are the core functions of the appellate procedure, because the two functions reflect directly the two major purposes of the criminal appeal system, namely the individual purpose to remedy the lawful rights of the regards party and the social public purpose to maintain the unified legal system . The author hold the view that the ideal system to be designed should carry on a rational distribution between these two major functions in, in order to avoid the repetition or disappearance of the two important functions. There have been double purpose and function in the appellate procedures of various countries at the same time. But the second instance court and the third instance court have different emphasis, namely the second instance court lays particular emphasis on the full play of the error-correcting function in order to give the remedy to the party in the individual cases, while the third instance court lays particular emphasis on the function on unifying the application and explanation of law. So for the third instance court, it is less important to give the remedy to theindividual cases through correcting wrong judgments accordingly.Moreover, the article discusses the nature of appeal rights, the appeal subject and its legal status and the special protection to defendant's appeal rights in the criminal procedure process. Because the arrival of court's jurisdiction of trial on appeal and enforcement range are all limited by the right of appeal to the party, so studying the problem of party's right of appealing is actually to study the inherent relation between the party's lawsuit right and trial power of the court in the appellate procedure, thus we can clear take an insight the jurisdiction power and its operation mechanism, according to the nature of the right of appealing. The author think the nature of right of appealing reflects as four respects, namely procedure start right, interests demand right, lawsuit punish right and jurisdiction ask right. On the basis of describing the nature of the right of appealing, the article also explain every criminal subject and its legal status among the criminal appealing system of our country and the special protection to defendant's right of appeal.Chapter three uses the method of relatively study, investigating with criminal judicial latest achievement and development reform trend of the criminal appealing system in the main countries or regions of the two fundamental law systems and Taiwan province of our country, the article has summarized the common characteristics, differences, origin causes of formation n the main countries or regions of the two fundamental law systems in the criminal appealing system afterwards. In the western various countries, the criminal judicial reform has been attracting people's most attention since the 1990s, and it tries to pursuit the balance of the plural basic values. And this undoubtedly has rich referential meanings to perfection of the system of criminal judicial reform and the criminal appealing system in our country. As the typical representatives of the Anglo-Americana law system, the GreatBritain and U.S.A. have a close relation at legal origins and traditions. The way and procedure of the criminal appealing system in Britain are all comparatively complicated, which are different from those of the other main counties. The main characteristics of the second instance in the Great Britain is the permission warrant of appeal, which are effective measures to control the quantity and the quality of the appealing cases. The Great Britain follows and forbid-double-danger rule traditionally, limit the accusing party's right of appeal strictly, but through constant judicial reform, The Great Britain come to realize the importance balance between the procedure justice and efficiency, crime controlling and human rights ensuring, so gradually make efforts in the last few years to give more rights to the regards parties to appeal and draws close to the civil law countries. The criminal appealing trial instance structure in U.S.A. is a kind of law trial and an afterwards trial, and its second trial instance procedure depends on the party's choice, while the third trial instance is a kind of restricted appealing, and the quantity of cases appealing to the Supreme Judicial Court is under control through the permission warrant of appealing making, so as to ensure court of last instance achieve the function on unifying the application and explanation of law through the way of " full mat try " . In the part of the American criminal appealing system, the article exploits some relevant measures taken in U.S.A. and some reform activities aiming to lightening the work of the appellate court.France and Germany both represent the Civil Law, France's criminal appellant system is divided into the ordinary proceedings for appeal and extraordinary proceedings for appeal. The felonious cases implement last instance system of the first instance, and usually the Supreme Judicial Court is not regarded as one grade of courts either . In recent years, under the guidance of human rights safeguards and the " European human rights convention "France has strengthened the criminal judicial reform, And it has set up felony appeal system in its legal reform in the new century. Compared with other countries, felony appeal system has its unique style, By adopting cyclical appeal form; the Supreme Judicial Court appoints another felony court and this court will adopt the jury to go on a trial. This article also explains the nature of the Supreme Judicial Court in France, and put up with the assumption that the appeal for the interests of party should be the third proceedings in its procedural system, and what mentioned above doesn't have substantive difference with the legal trial of the Supreme Judicial Court in other countries, Germany has adopted the plural system combining last instance for the third instance with last instance for the second instance. The complaining procedure aims at the factual procedure which is applicable to the adjudgment of the local courts; The appellant procedure is an examination afterwards aiming at the appeals on the case judgments made by the state court and above; Resisting and informing procedure is pure procedural remedy to exam the various kinds of adjudication and special verdict made by courts and judges.Japan , Russia , Taiwan traditionally belong to the civil law system, but the great changes have taken place respectively in the criminal procedure in the two countries and one area, and the pattern of criminal procedure the three adopted is more like the Anglo-American law system than the original civil law system. Though the three counties have some common characteristics, but the reform in the three counties and region didn't follow the same direction. Japan followed the American way while Russia and Taiwan followed the Germany way. We can say the criminal appeal system in various countries and regions differs from one another, but also enjoys some similar even same system designs, and the differences rely on different national histories, different legal traditions and different legal cultures, while the similarities rely on the judicial civilizationmerge among the countries and regions and each judicial system can use the experience of each other for reference, resulting in mutual promotions. This article thinks the differences mainly reflect the following aspects: the structure of the second trial instance system, the range of remedy and examination by the super court, the trial pattern of the second trial instance, and the subjects of appealing. The major differences of the two law systems on the range of remedy and examination and structural differences during the appellate procedures have direct relations with the first trial procedure. That is to say, the first trial procedure and trial body influence the framework of the appellate procedure directly, and the fundamental causes root in the two law systems' different attitudes and concepts on the lawsuit value ideas and the appellate procedure.Proceeding from the system of dual-instance and final judgment, chapter four analyzes the properties, defects as well as the motivation of China's present appeal system. It is maintained that the system was established on the basis of the reality and economic situation at the early inception of the foundation of PRC. However bound and affected by traditional ethics, there formed an inadequate recognition of the importance of ensuring the clients' rights and repressive measures, giving rise to the ignorance of the modest qualification of judicial staff, the low quality of judgments made by courts and an increasing number of cases demanding a third instance. It is quite a utilitarian system per se in its overemphasis on the inconvenience and difficulties involved in tri-instance system and immediacy of case dealing. Though the external situation in the early 1950s justified the composition of the dual-instance system, the practice of sustaining the system complemented by such procedures as capital punishment checking and re-examination conducted in 1996 when the criminal law was under rectification runs counter to the original motivation in an obvious way.The following features characterize the present appeal system for criminal cases conducted in China. First with the full implementation of the principle of comprehensive censorship in the appellate procedure, the second instance court is exempted from the restriction of the scope and demand of the appeal. Second, the setup of the criminal appellate procedure is obviously featured by singularity and the second instance court should also assume the function to deliver remedial measures. Third, reviewing trial/instance structure as it is, the frame is distinct from their foreign counterparts characterized by court-holding. Fourthly, the appellate procedure is colored by the over-authoritative status of the court, which is well reflected in its interference in the clients' litigation-withdrawal, appealing motivation as well as demands, the dominant role of the judge in deciding the manner of cognizance and ultimately the arbitrariness of the judgment.Associating with theoretical background and common practice, section three of this chapter is devoted to the analysis of the defects of the present criminal appealing system as well as their causes. The principle of comprehensive censorship guided by the idea of seeking truth and correcting wrong-doing whose establishment conforms to the state-oriented concept of legislation, runs against the basic operational rules for jurisdiction, the remedial nature of appellate procedure and the principle of efficiency in litigation. It is demonstrated that the existing appellate procedure can only fulfill a doubtful repressive role and thus is hardly adaptable and applicable to all legal operations. The fundamental causes for such impotence lie in the inability of the once-for-all reviewing system to detect and rectify improper judgment, the negative impact of criminality inference and over-emphasis on substantiality (while depreciating procedure) as well as the lack of specialized remedial procedures because in the process of legislation it's not ascertained as the basicfunction of appellate procedure to unify legal applications and to ensure the uniform application. The importance of the appellate procedure has been marginalized by "the practice of asking for approval from the superior" and other distractive factors. Superficially the defects of the procedure lie in the actual operation and practice; but on second thought, they are deeply rooted in the imperfect legislation and judiciary system, also counted as the effect of criminality is the remanding to retrial. In the meantime, such a procedure is always repetitiously enforced, which will exert a destructive impact on the judiciary eventuality. It also accounts for one demerit of the present appealing system that the procedure for judgment re-adjustment is only applicable to a limited number of cases and the remedy of procedural judgment is also absent in appellate procedure.Chapter five is to reconstruct the criminal appellate system in our country. It is proposed that it is necessary and feasible to conduct a tri-instance system whose establishment and implementation, though to some extent impairing the efficiency, is well justifiable. With this system as a solid basis, we further divide and define the judiciary roles and their governing purview of the four-level courts so as to set up a functional distribution among the four-level courts. At the same time, the elevation of the trial grade system will gradually direct its function from the private purpose of providing remedy for the clients involved to the social public aim to unify the legal application, which is in full concordance with the pyramid-shaped judiciary grade system. Among the pyramid system, the Supreme Court and the higher courts are defined to specialize in appealing, playing a unifying role as a third instance conductor in legal application.This article thinks, the second instance procedure is an essential means to give the remedy to the regards parties, and also a necessary method to controlthe quantity of the appealing cases, so the second instance procedure should combine and balance fairness value, efficiency value and right remedy value rationally. To perfect the second instance procedure should solve into the following two key problems, the one is to smooth the relation between the appealing right of the regards parties and the jurisdiction power of the courts rationally, establish the appealing system which should take respecting parties and their appealing rights as central goal. The another is to hold a hearing in the second trial instance, in order to really realize the remedy purpose in second instance, make the error-correcting function reach the ideal result. Its concrete perfection measures are: to establish the limited examination principle to fully respect the parties' appealing rights; To take the grounds of appealing as the division standard of holding a hearing or not in the second trial instance ; To restrain the exercise of reminding to retrial strictly; To set up inquisitional procedure and investigating magistrate's system to deal with the procedural judgment problem before the court's trial; To expand the range of verdicts to perfect procedural appeal remedy of verdict relieve the system.Concerning the third instance of the criminal procedure, the article points out the biggest defect under the current trial grade system is that there is no specialized procedure to deal with the disputes on the application of law , which is not helpful to unify law application and maintain the national uniform of legal system. So the important purpose of the reform of the criminal appealing system is to establish the third instance as the special instance dealing with the disputes on the application of law, which called law trial.To realize the function and purpose of the law trial, it should be set up as a relative trial .the article's designs for the relative trial go as following: (1)exelude the appealing rights of the regards parties in the summary procedure .The author proposes that in order to keep the balance of all the valuein the appellate procedure, we should divide the cases in the first trial instance into three different types as follow ,in according the cases' complicatedness: ordinary judicial procedure, slightly type judicial procedure and simple and easy quick decision procedure. For the summary procedure, meanwhile we should lay some restrictions on the grounds of appealing in the second instance, and get rid of the regarded parties' rights of appeal to the third instance court. (2) The grounds of appealing to the third instance court should be clarified by the legislative form; (3) The People's Supreme Court can issue the permission warrant to control the case in a suitable number. And the grounds of issue the permission warrant should be clarified in the law code, which on one hand can control the case in a suitable number, and on other hand, also can prevent the unfavorable space on the permission enjoyed by the People's Supreme Court .Because such unfavorable space may lead to cutting out freely on permitting appealing rights from the regards party.This chapter specially explained the defect of the procedure for review of death penalty finally and carries on the concrete design on the new trial grade on the appealing; pointing out the defect of being non-judicial of the procedure for review of death penalty makes it difficult to play the anticipated function of this procedure in practicing. While canceling procedure for review of death penalty and taking it into the normal trial grade system is helpful to enhance the defendant's legal status as the lawsuit subjects. I propose to withdraw the right of authorization on the death penalty to the people's Supreme Court, which can better improve the quality of the case, compared with the increasing one trial grade. Because of the particularity of the death penalty case, the design of the second instance and the third instance for it should be different from remedy procedure of the ordinary criminal case: The second instance of death penalty case should be set up for the automatic appeal and the third should be foralternative appeal procedure; The second instance and the third all can examine the matters of fact and legal; The second instance should hold a hearing, while the third may not hold a hearing , and considering significance of the case and some realistic difficulties of sending the defendant, the lawyers representing the defendants should be allowed to appear on the court on behalf of the defendant; The judging of the death penalty case should take adjudicating directly as the principle .Having explained the appellate procedure's influence on the reviewing procedure, in the conclusion part of the article, the article finally puts forward some suggestions in legislation to perfect the reviewing procedure.