Reasonable Regulation On The Commencement Of Chinese Criminal Retrial Procedure

The Criminal retrial procedure in China, also called the trial surveillance program.It is applicable when it find effective referee or applicable law has some mistakes.Relative to the appeal procedure, the object of the Criminal retrial procedure is the effective referee. Therefore, the Criminal retrial procedure is regarded as a very relief program or special relief program.The Criminal retrial procedure is a kind of special relief program and safeguard the judicial justice, its mentioned and running are directly related to the court effective referee's res judicata, authority and state power to implement the fairness of the punishment, but it also related to the protection of the legitimate rights of the parties.But when the effective referee occur errors and need to start the retrial procedure,there will exist certain degree conflict between the res judicata and Fairness of the law.The Criminal retrial procedure contains a series of litigation value realization and selection process, not just a simple understanding activity. In order to maintain the effective referee's stability, realize the substantive justice, safeguard the case the lawful rights of the parties,the Criminal retrial procedure need to be perfected constantly. Specifically speaking, starting the criminal retrial procedure must follow certain lawsuit value concept and basic principle,to realize the maximum balance between value conflicts. Judging from the world's two big law, Anglo-American law system don't have complete and systematic criminal retrial system,but it have some error correction system and the some error correction system have the function that is similar to the retrial procedure, such as certiorari,habeas corpus,writ of prohibition, mandate and so on. Continental legal system value the res judicata of effective referee,but on the value orientation,it pay more attention to the entity of the case.Continental legal system have explicit retrial system. Obviously,the world's two big law take the retrial system seriously. Through study carefully,we can find that retrial system of many countries of two big law or some system similar to retrial system have two regularity characteristic.One is relief,another is to maintain the balance of the res judicata to control the program strictly.The res judicata principle and non bis in idem principle of Continental legal system have great significance to perfect our country's criminal retrial procedure.The value of the res judicata principle and non bis in idem principle is to protect the defendant's legal rights, to maintain the judgment's finality and stability, to prevent endless dispute,to give people a procedural justice,to let people accept the court's judicial referee and to believe the court's judgment. These two principle in our criminal retrial is in the missing state.China's current criminal retrial procedure have various defects. Principally including:the value idea have error, the body of retrial procedure doesn't comprehensive and unreasonable, the reasons is ambiguous and lack of maneuverability, the aging and times have no limit, appeals review procedure hasn't open and so on.These defectsof criminal retrial procedure count agaist to play the function as a special relief program.Therefore, the current criminal retrial procedure must to be perfected. I put some opinions in this paper. I think to perfect our current criminal retrial procedure must analysis the existing defects and reasons.On the basis of defects, I point out the the necessity and the possibility to perfect the criminal retrial procedure and our criminal retrial procedure should follow the value concept and basic principles. Finally, I put forward measures to regulate China's criminal retrial procedure reasonably.These specific measures include:draw on the legislation experience of two big law,, update the subject of the retrial procedure, ascertain the reasons of the criminal retrial procedure, establish the times and aging of the criminal retrial procedure, ascertain the jurisdiction body, draft the specific view process, make sure the effectiveness of criminal retrial procedure.