On The Function Of Chinese Criminal Procedure Of Second Instance

The function of criminal procedure of second instance in judicial practice in our country is is not very desirable. Based on the perspective of clearing the function of the criminal second instance in our country and re-examining the criminal second trial related issues,we can excavate the causes behind the problems and puts forward to concrete advice to perfect criminal procedure of second instance.So the study in this aspect has a very important theoretical and practical significance.In addition to the introduction, the article is divided into four parts, a total of thirty thousand words.The first part studies the theory of the function of criminal second trial. In the system of the court of second instance being the court of last instance in our country, the function of the second trial and the appeal system overlap and it offers the potential for us to study the function of the second trial in the perspective of the appeals system. The error correction function and relief function of criminal appeal system have been recognized by the theoretical circle both at home and abroad. In addition to this, the ‘Institutions function' or the ‘public role' of court of second instance which extended from the error correction function and relief function of criminal appeal system have different embodiments in other countries due to the different judicial tradition and trial grade system. The ‘Institutions function' of criminal procedure of second instance in judicial practice in our country is is not very desirable.But the function to uniform the application of laws of second trial is worth paying very close attention to,no matter from the necessity or possibility.The second part studies the status quo of the function of criminal procedure of second instance in judicial practice in our country. The relief function of second trial has been weakened in judicial practice. The court of second instance will consider not only the entity of the case but also the factors beyond law,suck like performance assessment and the ease of handling which will affect the consequence of the lawsuit because of that the error that should be corrected by the court of second instance has not been found and make up in a timely manner. As to the relief function, it bot been bringed into full play, such as invalid operations of second trial due to the absence of the criminal grounds of appeal.There are many problems on the defendants' right to relief in the process of criminal second trial.And the function to uniform the application of laws do not show up adequately in judicial practice.The third part studies the restriction factors of the function of second trial. From the perspective of the concept, regard entity belittle procedure idea and the concept of pursuit of efficiency and neglect of justice have affected the function of the criminal second trial. From a process design standpoint, the absence of the criminal grounds of appeal,the mere formality of trial and the lack of judgment reasoning let the criminal trial deviate from the ought-to-be ‘substantial'. Some problems existing in the protection of human rights and judicial independence in the proceedings let the function of second trial can not give full play to the role of it.The fourth part puts forward concrete ideas to perfect criminal second instance taking the function as the breakthrough point.While the premise is the change of the judicial idea that the modern judicial ideas form in the minds of the judiciary an exert a subtle positive effect to the function of second trial. The foundation is perfect programming which has grounds for appeal so as to prevent the irrational start of criminal trial,save judicial resources, improve the quality of the trial of second instance and romote the trial "substantial".At the same time we need to strengthen the judgment reasoning to exert the function of law application in the criminal trial of second instance. The key is the strengthen the protection of human rights.We need to further improve the system of defense especially the designated defense system.At the same time we need to improve the prosecution trial of the protest to prevent the bias of the protest. The focus is implementation of trial independence which means the abolition of the system of asking for instructions to exert the advantages of the collegiate bench in the trial of cases. Only so can we reform the evaluation system, promote the work of the judges and improve the quality of trial work.