Research On Criminal Misjudged Case

Criminal misjudged case which arises in the phase of adjudication does harm to the parties' legal rights and interests directly and seriously, so it is necessary and urgent to be on guard and restrict the misjudged case. Our court system has been implementing the system of investigating into misjudged case since 1992, the aim of which is to attain the effect of being on guard and punishment, but the actual effect is not very ideal. Then people begin to rethink the presupposition of the system of investigating into misjudged case. The article discusses some important problems of criminal misjudged case from the aspect of rethinking.Part one is about the standard of misjudged case. In this part, the author discusses three problems. First is the standard of misjudged case under strong inquisitorial system pattern. Here, the author thinks that our country was influenced by absolute inquisitorial system pattern of Soviet Union when established in 1949, so we also set up this kind of strong inquisitorial system pattern which look down upon the procedure and pursuit the objective certainty. Strong inquisitorial system pattern thinks that there is only one right result for a case. That is to say judge must find out objective certainty, or it is a misjudged case. Then the standard of misjudged case is set up. Second is about all kinds of theories. With the development of academic circles and perfection of our legal system, scholars rethink several traditional opinions of many fields. During the course of it, some theories arise. These theories can be divided three categories: objective theory, subjective theory and unified theory. But all these three theories have shortcomings, there is no general theory arise at present. Third is about the author's opinion. Here, the author denies the standard of misjudged case and thinks that there is a latent presupposition in objective theory. It is that the decision of every case is sole and certain. If we discusses that if right decision is sole, we must discusses whether the three determinative links----legal standard, fact standard, deduction----is certain. But for the ambiguity and uncertainty of language and some other factors, law is both explicit and ambiguous and uncertain. At the same time, for the knowledge ability of people is limited, fact of the case as the basis of the decision has some uncertainty in some degree. Furthermore, there is also uncertainty in the course of deduction which legal workers deduce decision according to fact of case and legal prescription. So judge can't decide a case like a pupil who works out a problem and gain a right answer. In a word, the present standard is not advisable. Then the author redefines the standard of misjudged case. The author points out that the misjudged case is the case that violates the requirements of legal certainty intentionally or negligently. That is to say it is misjudged case if applying of substantial law and performing of the procedure violate the legal prescription. That if it will give rise to substantial fault result can't affect the constitution and finding. We should consider both objective aspect and subjective fault. Objective aspect is not substantial result but some result which can be gained after legal certainty replaces objective certainty. At the same time, if we set our mind on misjudged case, there must be subjective fault of judge which include intend and negligence, and negligence should include knowledge deviation and limited ability. Finally, during the course of setting mind on misjudged case, it doesn't require wrong result, and we should also attach importance to procedural misjudged case which embodies the requirement of procedural justice.Part two is about the responsibility of misjudged case. In this part, the author introduces the summarization of responsibility of misjudged case firstly. According to the semantic analysis of Hart on responsibility, the meaning of responsibility can be divided four categories: role responsibility, causality responsibility, positive responsibi...