| Mistakes in criminal judgment are inevitable,which is determined by the nature of human perception itself.So,it is of great significance to correct wrong judgments in order to maintain judicial justice and the legitimate rights of the parties.The retrial procedure in our country is just a criminal relief procedure for correcting wrong cases.However,it is often difficult to start the retrial procedure in China and it is difficult to realize the expected function of the retrial system design.The degree of ease of retrial start-up is directly affected by the proof standard of criminal retrial starting procedure.The importance of a proper and clear proof standard of criminal retrial starting procedure for the realization of the function of retrial can be seen.This paper mainly uses the methods of literature research,comparative research,case analysis and quantitative research.It discusses what is the proof standard of criminal retrial starting procedure from the theoretical level,and puts forward suggestions on the perfection of the standard of proof for the initiation of criminal retrial procedure in China.In addition to the foreword and conclusion,the text is divided into four parts:In the first part,the author,through the literature review,backtracks and analyzes the research status of the research standard of the retrial start-up standard and the reasons for the research status.There are two main problems in the research on proof standard of criminal retrial starting procedure in our country—there is no conclusion of what is it and there are polarization differences in how to improve it.In the second part,the author answers what the proof standard of criminal retrial starting procedure in China is,not only gets the conclusion that china’s retrial start-up proves as "definite error" by analyzing the current legal norms of our country,but also makes a theoretical interpretation of the word "definite error"which has a double meaning,and decomposes it into the cause of criminal retrial starting procedure and the proof standard of criminal retrial starting procedure.The cause of criminal retrial starting procedure is not all facts that need to be proved,but the proof standard of it refers only to proof object.After analyzing whether the four retrial initiations are the proof objects,the author concludes that,in particular,"definite error" works as the proof standard of criminal retrial starting procedure only in the process of proving the factual error and the serious procedural error.In the third part,the author mainly through the method of empirical analysis to judge whether the proof standard of criminal retrial starting procedure in China is too high or too low.First of all,the author get the conclusion that the standard of proof of retrial in China is high but not too high through the analysis of the overall data for 2015-2017.Then,by comparing the evidence of the typical wrong sentence in retrial appeal period and the evidence for conduct a retrial,the author denies the conclusion that some scholars have claimed that the proof standard of criminal retrial starting procedure in China is too high.Finally,the author analyzes 474 cases decided to initiate retrial in 2019,and gets the conclusion that there is no obvious difference between the three types of the proof standard of criminal retrial starting procedure in China,according to which we cannot think that there is a certain type of overall standard in our judicial practice is too low and the other type of overall standard is too high.The fourth part,a comprehensive analysis above is that the problem of criminal retrial starting procedure in China is not the overall standard,but the standard is not clear enough.The author put forward that China’s proof standard of criminal retrial starting procedure improvement path should be clarify it.The traditional method is to refine the cause of criminal retrial starting procedure,the author denies this method for two reasons,lack of basis in refining the retrial causes and the difficulty of obtaining results,and puts forward a new method of clear the proof standard of criminal retrial starting procedure according to the relationship between the object of proof and the standard of proof.It should be classified by distinguishing the object of proof,and the appropriate proof standard of criminal retrial starting procedure corresponding to the different categories of object of proof should be determined by analysis. |
