The Practical Dilemma And Way Out Of The Principle Of No Penalty For Appeal

The legislative purpose of the principle of no imprisonment on appeal is to protect human rights and has been written into the law by most countries in the world.In the Criminal Procedure Law of 1979,our country established the principle of no penalty for appeal,making it one of the principles that the court of second instance must abide by.After three amendments to the Criminal Procedure Law,this principle is still retained.The original stipulation was: "The people’s court of second instance adjudicating the defendant or his legal representative,defender,and close relatives shall not increase the defendant’s punishment.People Where the procuratorate lodges a protest or the private prosecutor files an appeal,it shall not be subject to the restrictions set forth in the preceding paragraph." The "Criminal Procedure Law" of2012 added the rule that "the people’s court of the second instance sent back to the people’s court of the first instance for retrial.In addition to new criminal facts and the people’s procuratorate’s additional prosecution,the people’s court of the first instance must not increase the defendant’s punishment." Therefore,only when the defendant’s appeal is filed,the court of second instance cannot increase the defendant’s punishment,and the special circumstances of the case returned to the retrial cannot be aggravated.Its essence is a right protection mechanism for the defendant,which protects the defendant’s right of appeal by limiting the second-instance court to increase the appellant’s penalty,the purpose is to protect human rights.The idea of emphasizing the entity is infiltrated in the tradition of the rule of law in our country.This pursuit of entity justice has exactly affected the application of this principle.Appeal without additional punishment embodies the concept of procedural justice,which is contrary to the traditional thinking of cracking down on crimes and seeking truth from facts.At the same time,the provisions of the judicial interpretations related to the Criminal Procedure Law regarding procedures such as returning to retrial and retrial have resulted in the implementation of this principle.Hinder.After the implementation of China’s revised Criminal Procedure Law in 2018,some defendants in the confession and confession cases on the one hand obtained the concession concessions granted by the confession and lenient system,on the other hand,theyachieved it through appeals and the second instance procedure It is suspected that it would abuse its right to appeal by imposing unlawful interests such as "remaining at the place to execute" and "appealing without penalty".All these undoubtedly challenge the implementation of the principle of non-penalty in appeal.The establishment of the principle of non-penalty in appeals safeguards the exercise of the right to appeal;effectively maintains the appeal system and the final trial system of the second instance;strengthens the sense of trial responsibility of the courts of first instance;The defendant’s litigation subject status also provided procedural guarantees for the appeal of unjust,false and wrongful cases.From the point of view of the power of prosecution and defense,the principle of non-penalty of appeal gives the appellant the right to remedy against the public power of the state,which is beneficial to protecting the defendant’s legitimate rights and interests and achieving judicial justice.Only by clarifying its legislative value and allowing people to recognize it from the heart,can it fundamentally escort judicial practice.It is relatively rare to violate the appeal without imprisonment in the second instance of judicial practice.However,it is not uncommon to violate the appeal without imprisonment in an indirect way.Through the retrieval of the case,we can find that it is mainly issued through the coat of unclear facts and insufficient evidence.Re-trial,or increase the defendant’s sentence under the name of error correction through the trial supervision process.The academic community has argued about this phenomenon,and put forward suggestions and legal basis for applying the principle of appeals without imprisonment for retrial,so as to block the passage of disguised sentence for retrial.There are two kinds of voices on the increase of sentence through retrial: one is that the spirit of legislation that violates the principle of non-penalty for appeal is violated;the other is that it is necessary to uphold the authenticity of the entity while safeguarding the fairness of procedures and human rights,and errors must be corrected.The two are still in a state of game,and in judicial practice,it is necessary to continue to seek a balance to coordinate the value choice between entity justice and procedural justice.Facing the status quo of disguised imprisonment in China’s judicial practice and the different views on the abuse of the right to appeal,we should first get rid of the traditional ideas and thoughts,understand the connotation of imprisonment on appeal,coordinate its principle of adapting to crime,punishment and punishment,and The relationship between the basic concepts of the criminal procedure law and the function of procedural protection.At the same time,we dialectically recognize the abuse of the right to appeal,learn from foreign experiences,and recognize and improve the principle of no penalty for appeals based on China’s national conditions,so as to better realize the rule of law in China.