On The Localization Of Non Bis In Idem Principle In Criminal Proceedings

The principle of non bis in idem is a legal principle which has existed for a long time.Its earliest birth was in ancient Rome.At present,the principle of non bis in idem has been applied in many countries in the world,and is included in the country's criminal procedure law and even the constitution.In addition,international conventions such as the Convention on Civil and Political Rights also explicitly stipulate the principle of non bis in idem,which is legally binding on States parties.From a worldwide perspective,although countries of different legal systems have different appellation and emphasis on the principle of non bis in idem,they all have the same points as safeguarding the res judicata of the effective judgment of the court and guaranteeing the human rights of the defendant.However,the principle of non bis in idem is not explicitly stipulated in the Criminal Procedure Law of our country,but the spirit of the principle is reflected in some systems.China's judicial supervision system is too active in pursuing the so-called "truth" of cases,giving the court the power to initiate retrial on its own initiative,not distinguishing whether retrial is beneficial to the accused or not.In fact,to a certain extent,it is inconsistent with the internationally accepted principle of non-jurisprudence,which deserves reflection.The main reason why China has not explicitly stipulated theprinciple of non bis in ideals in the Criminal Procedure Law is the ideological aspect.One-sided understanding of the ideological line of "seeking truth from facts" and "investigating errors" will lead to ignorance of the res judicata of court decisions and the legitimate interests of the accused and hinder the localization of the principle of non bis in ideals of putting national interests and social interests absolutely above personal interests and emphasizing entity over procedure.Our country should transplant the internationally accepted principle of non bis in idem to our country and localize it according to our national conditions.In our country,the principle of non bis in idem should be localized,and it should be understood in a broad sense.The key is to maintain the effectiveness of the court,the res judicata of the effective judgment of the court,and to ensure the central position of the court in hearing the case,as well as the authority and stability of the court's judgment.In order to localize the principle of non bis in idem in our country,we should not only clearly stipulate the principle of non bis in idem in the Constitution and the Criminal Procedure Law,but also reform and improve the judicial supervision procedure and the withdrawal system of procuratorial organs.First,reform the procedure of trial supervision.The abolition of the court as the main body of initiative to start the trial supervision procedure strictly controls the initiation of the retrial procedure which is not conducive to the defendant,strictly restricts the conditions for the procuratorial organs to initiate the retrial,and clearly stipulates the principle of no additional punishment for retrial.The purpose of this reform measure is to safeguard the res judicata of the effective judgment of the court and the interests of the defendant against "double danger".Second,reform the procedure of second instance.Strictly restrict the conditions for the procuratorial organs to lodge a protest against the judgment of the court of first instance,and cancel the power of the court of second instance to return to retrial.Third,the power of procuratorial organs to withdraw prosecutions should be abolished.After prosecuting a case to a people's court,the procuratorial organ shall not withdraw the prosecution,let alone institute a public prosecution again after withdrawing the prosecution.These two reform measures are to safeguard the effectiveness of the court,which can safeguard the central position of the court in hearing cases and the interests of the accused from undue litigation.