On The Reversibility Of The Criminal Procedure

Under normal circumstances, a complete criminal proceeding includes filing, investigation, prosecution, trial and execution. It is a series of steps marked by lawsuit documents, interacting between litigation subjects and proceeding with time order. Comparing with the time order of legal procedure, procedure reversibility means to invalidate the previous conclusions and return to the previous stage of lawsuit procedure by setting special lawsuit procedure to balance judicial efficiency, if according to law, there comes procedural errors or the fact unclear, or evidence insufficient.There appear many situations that procedures reverse back in legislative and judicial practice throughout our country's criminal lawsuits history. Procedure reversibility can be applied during investigation, prosecution, trial and execution period. These break the one dimension of normal time order. As a remedy tool, the original intention of setting procedure reversibility is to effectively rectify blemish during the previous procedures, which in order to realize procedure justice. On the other hand, it is also for the purpose of safeguarding the rights and benefits of the party. However, due to the absence of strict limits, the remedy is overused which leads to many problems such as extended detention and trial repetition. All will make the whole lawsuit procedure lengthy and heavily waste judicial resources, even infringe the rights of the person concerned.The procedure reversibility negatively evaluates the previous procedures even offsets their functions. The procedure reversibility conflicts with presumption of innocence, the concept of procedure justice and the theory of res judicata to some extent. It violates the requirement of presumption of innocence and still deem suspect as the object of litigation. It is contrary to the principle of neutrality program, which will make the judge departed from a neutral role or go beyond the scope of judge. It also act against the equality of the procedure, resulting in the imbalance between plaintiff and the accused, further infringing the rights of the parties concerned. it violates the stability of procedures, making the outcome of cases pending and the interests of participants undetermined, its existence is also a violation of the principle of legal efficiency, and can not resolve disputes, litigation one time, while makes costs increased, finally late arrival of justice turning to be injustice; its existence violates the requirements of res judicata, making decisions can not be timely and effective, the stability and authority of the decisions will be broken by procedure reverse. Therefore, the procedure reverse is an injustice procedure, even if it has the function of redressing a problem, it should be considered as a very state of exception.In view of the shortcomings of procedure reverse, the application of such procedure should be strictly limited through establishing a scientific reverse system and seeking a balance between justice and efficiency. In the present legal environment, the procedure reverse should be strictly limited in the trial and the execution stage. The conditions, frequency and time of second trial and re-trial should be strictly stipulated to make sure the stability and authority of effective court decisions. Once the court decision is made, it can not easily reversed back. While during investigation phase, the supplementary investigation should be allowed due to particularity and complexity of the investigating work. However, this existence must have some conditions, the reason and duration of the returned supplementary investigation also should be limited to a relatively narrow range.