Research On The Identity Of Criminal Cases

As the object of criminal procedure, the criminal lawsuit consists of two elements, one is the defendant, the other is the criminal facts. There is no clear criteria on the identity of criminal cases in theory, which lead to some defect in relevant system in China. First, the content of the indictments is so detailed that we separate the facts from legal evaluation. And there is no criminal procedural sanction on illegal indictment. All of the problems are bad for defendants’defensive rights and makes the criminal trial object not clear. Second, the accused facts and charges is not clear in the system of the alteration of public prosecution, and the procedure is not reasonable. Third, the rule against double jeopardy is not regulated in China and the defendant is accused of repeatedly. Through the comparative review of the civil law countries and the common law countries, we conclude that there are three types of criterion about the identity of criminal cases. They are the criterion of same accusation, the identity of the fact of complaint and the criterion of legal fact. In China, the identity is defined with the criterion of legal fact. In my opinion, it is necessary to establish the indictment-only doctrine, bring in count system, clear procedural sanction measures, perfect the system of the alteration of public prosecution and regulate the rule against double jeopardy in China to adapt for the theory of criteria on the identity. The construction and perfection of institution is based on the theory of procedural justice, constitutional theory and economic effect. Therefore, the solution to these problems is of great significance for the development of the rule of law in China. It benefits to restrict the power, keep the neutral for judge, protect the human rights and regulate the relationship tend to be more reasonable among prosecution, jurisdiction and defense.