Theory Of Criminal Retrial Procedure

In China's criminal procedure, rehear process is a very important part. It is a kind of relief process to "certain wrong" positive adjudication, and it is based on the theory of truth finding and achieving objective justice. Criminal rehear process has certain effect on protecting the parties' right, protecting human rights,insuring the quality of adjudication and upholding judicial justice and standard; but it also has many demerits in legislation , and this lead to some difficulties in practice. I will make a preliminary research about the reformation of our criminal rehear process in this essay, I hope I can give a service to the reconstruction of the system of criminal rehear process, which has China's characteristic. This essay has five parts, and about 32,000 words.The first part is a summarization of our criminal rehear procedure, I mainly introduce the definition of criminal rehear procedure. Criminal rehear procedure as a kind of relief process to wrong and effective criminal adjudication's retrial, its aim is to mediate the contradiction of effective judgments' certainty and the cases' truth, so it has function of correcting and protect human rights. On the same time, criminal rehear process also has some other positive merits, it can promote the fairness of justice, it can stimulate the authority of justice,change the idea about appealing and push forward the progress of justice.The second part is about the origin of China and foreign countries' criminal rehear process. Firstly, I describe the historical evolution of our criminal rehear process, secondly, I describe the foreign countries' origin about it, thirdly, I will compare the rehear processes from the part of its beginning.The third part is to review the foreign criminal rehear process comparatively. If we want to get a big advance in law, law migration is necessary. This part shows the criminal rehear process in the typical countries of Continental Legal System and System of Common Law, and compares who and the reason to start the rehear process,and the degrees of rehear, compare with China, find the differences between them and some merits in legislation, and we can learn from the merits of the foreign criminal rehear process, and make a corresponding reformation. The fourth part is about the actual demerits of our criminal rehear procedure. By the procedural aspects, starting rehear is too easy; "certain wrong" of positive adjudication as the reason of starting the rehear process is faint, and the reason of starting a rehear process will lead to the unbalance between prosecutor and judge; complaint, as citizen's procedural right, is not stated in detail; the trail manner of rehear is not stated strictly, but according to the primary procedure, this lead to the speciality of rehear process could not embodied. Because of this reasons, a effective judge is assaulted by many subjects and has no limitations.The fifth part is some suggestions for the reconstruction of our criminal rehear procedure: firstly, we must change procedural ideas, and reform the leading ideas. Secondly, we should change the criminal rehear process to the rehear appeal, and then modify the terms of time and degree to the criminal rehear process which favorable to the defendant, especially the rehear process which unfavorable to the defendant is started, and change the courts' degree, and make the balance between the power of prosecuting and judging.