Criminal retrial procedure
Justice is the lifeline of the rule of law, judicial justice plays an important leading role in social justice, and judicial injustice has a fatal destructive effect on social justice.
First, the current situation of correcting misjudged cases in criminal retrial procedure
In the criminal trial, due to the complexity of criminal cases and the subjective factors of judicial personnel, as well as the restriction of criminal trial activities by various objective conditions such as the rules of proof and the limitation of action, it is inevitable that there will be mistakes in the criminal judgment that has come into effect. A criminal case with an error in the effective judgment is a criminal misjudged case, which will not only cause great social harm, but also cause fatal damage to the judicial credibility. In order to weaken the negative impact of criminal misjudged cases, what the criminal justice system can do is to weave closely. In addition to preventing and reducing the occurrence of misjudged cases as much as possible, it is also necessary to establish and improve the error correction mechanism of misjudged cases to find and correct them in time. Logically speaking, the process of correcting criminal misjudged cases should be like this: production-discovery-correction. According to the law of our country, in criminal trial activities, the criminal second instance procedure, the death penalty review procedure and the criminal retrial procedure all have the function of error correction. Criminal retrial procedure is the core and key of the error correction mechanism of criminal trial in China, and its main function is to find and correct the cases with wrong judgment. In our country, the criminal retrial procedure also carries the function of finding and correcting criminal misjudged cases, which is of great significance for safeguarding human rights and maintaining the fairness and justice of criminal justice.
Two, the criminal retrial procedure misjudged case error correction function failure reasons
As an error correction mechanism to find and correct misjudged cases, why does the error correction function of criminal retrial procedure fail? The author believes that the main reason is that the current criminal retrial procedure in China has the following defects:
(A) the guiding principle of criminal retrial procedure is too one-sided.
For a long time, China's criminal retrial procedure has adhered to the guiding principle of "seeking truth from facts, correcting mistakes and not doing wrong". The purpose of establishing criminal retrial procedure is to correct misjudged cases and realize the substantive truth of cases. Therefore, the Criminal Procedure Law has no restrictions on the initiation of criminal retrial procedure, not only does it not distinguish between retrial in favor of the defendant and retrial against the defendant, but also does not limit the number of retrial. As long as there is an error in the criminal trial, the criminal retrial procedure can be started at any time. It can be said that this litigation concept is correct on the whole and has played a positive role in correcting unjust, false and wrong cases in practice for many years. However, one-sided emphasis on the error correction function of the criminal retrial procedure will inevitably seriously damage the basic principles of procedural law such as the certainty, stability and stability of the referee, and at the same time make the defendant face the danger of being prosecuted at any time, which is contrary to the current modern criminal procedure concept of adhering to procedural justice and protecting human rights.
(B) the defects of the starting subject of the criminal retrial procedure
In China, it is a legal way for judicial organs to find criminal misjudged cases and start criminal retrial procedures to correct them. Article 205 of China's Criminal Procedure Law clearly stipulates: "If presidents of people's courts at all levels find mistakes in ascertaining facts or applying laws, they must submit them to the judicial committee for handling. The Supreme People's Court has the right to send back or instruct the people's courts at lower levels to retry the legally effective judgments and rulings of the people's courts at all levels. If the people's courts at higher levels find that there are indeed mistakes, they have the right to send back or instruct the people's courts at lower levels to retry. The Supreme People's Procuratorate has the right to lodge a protest with the people's court at the same level in accordance with the procedure of trial supervision if he finds that the legally effective judgment or ruling of the people's court at all levels is wrong. " It can be seen that the core mechanism of criminal error correction is that courts and procuratorates start criminal retrial procedures to correct misjudged cases. But in fact, it is often not ideal for judicial organs to start criminal retrial procedures to correct criminal misjudged cases. Judging from the error correction of criminal misjudged cases in China in recent years, the error correction of criminal misjudged cases is not based on the active self-correction of the judicial organs in the criminal retrial procedure, but depends on "fate" (the resurrection of the victim or the appearance of the real murderer) or "the costly accusation of the defendant".
1. The court lacks the motivation to start the criminal retrial procedure.
According to the provisions of the Criminal Procedure Law, the court has the right to initiate criminal retrial to correct criminal misjudged cases, which seems to expand the channels of retrial, help correct mistakes and safeguard the legitimate rights and interests of the parties. However, in judicial practice, courts generally do not initiate criminal retrial procedures to correct themselves. First of all, due to the influence of the inertia of fair trial thinking, after the effective ruling of the case is determined, the court of first instance often believes that the criminal public prosecution case has gone through investigation, prosecution and trial procedures; It is also prudent to accept the trial of criminal private prosecution cases; Some cases were finally pronounced after the second trial and the death penalty review procedure. I don't believe there will be any mistakes. Secondly, based on the practical interests such as accountability for misjudged cases, state compensation system, and internal performance appraisal, the court of first instance is slow to actively find and correct the effective judgment cases with errors. Thirdly, when the superior court files a case or orders a retrial, it can't get rid of the improper influence of the overall interests of the court, the case reporting system and the special relationship between the superior and subordinate courts. For example, in order to maintain the overall image of the court, the higher court is often reluctant to start a criminal retrial to correct the mistakes of the lower court; The system of asking for instructions and reporting between higher and lower courts will make the higher court become the real referee of the case, and will also affect the enthusiasm of the higher court to start the criminal retrial procedure to correct its own mistakes. Generally speaking, there are inevitable obstacles in the practice of the court's initiative to start the criminal retrial procedure, which leads to insufficient motivation for the court to start the criminal retrial procedure.
2. Procuratorial organs can't correctly exercise the right of protest in criminal retrial.
Judging from the provisions of the Criminal Procedure Law, the procuratorial organ has the right to file a retrial protest when it finds a case with wrong judgment, and the court must start a criminal retrial to correct the mistake no matter what the review result is. In practice, the procuratorial organs exercise the right of retrial protest, which exposes the defects of this system. First of all, in criminal proceedings, the role of procuratorial organs is both a supervisory organ and an accusation organ. This role conflict makes it difficult for procuratorial organs to correctly perform their accusation functions and safeguard the interests of defendants. From a practical point of view, the procuratorial organ is more in the position of defending the victim, and its active retrial protest is often aimed at the situation that is not conducive to the defendant, which may lead to the defendant's retrial. Secondly, when a criminal misjudged case is discovered on its own initiative, the procuratorial organ will often communicate with the court to deal with it. Due to the existence of the same interests, the retrial protest of procuratorial organs did not play its due role. Thirdly, when the procuratorial organs receive criminal complaints from defendants serving sentences in custody, they often do not take the initiative or timely investigate and verify, and collect relevant evidence, which affects the exercise of their criminal protest rights.
(3) It is difficult for the parties to appeal for criminal retrial.
Judging from the current judicial practice, the discovery of criminal misjudged cases mainly depends on the appeal of defendants and their close relatives, and it is often difficult for defendants and their close relatives to start criminal retrial procedures by appealing to correct misjudged cases. Article 24 1 of the criminal procedure law stipulates that "the parties, their legal representatives and their close relatives may appeal to the people's court or the people's procuratorate against the legally effective judgment or ruling." Article 242nd stipulates that "the people's court shall retry the complaint of the parties, their legal representatives or close relatives under any of the following circumstances ....." This shows that the indictment can only be used as the source of materials for the judicial organs to find the wrong case, and it does not necessarily lead to the start of criminal retrial. Whether to start a retrial depends on the review of the judicial organs. Because the law does not stipulate the procedure of examining complaints, the judicial organs' handling of complaints has a strong administrative color. In practice, the number of criminal retrial appeal cases remains high, but few appeal cases can successfully enter the criminal retrial procedure, and even fewer misjudged cases are corrected through the criminal retrial procedure. The judicial organs do not attach importance to the defendant's complaint or are tired of coping with it, which makes China's criminal justice error correction mechanism in trouble. Because of this, Zhao Xhai lost confidence in this after a complaint. During his 1 1 year in prison, he chose to seriously "reform" in order to get a commutation, and gave up his efforts to change the effective judgment through appeal and petition.
The reason for starting the criminal retrial procedure is unreasonable.
China's "Criminal Procedure Law" stipulates in principle the reasons for starting the criminal retrial procedure: through careful examination of all kinds of retrial application materials, it is found that "the effective judgment is indeed wrong in ascertaining the facts or applying the law". That is to say, the starting of criminal retrial procedure adopts the standard of "there is indeed an error". The author thinks that although this provision fully reflects that the value orientation of criminal retrial is error correction and the only criterion for starting criminal retrial procedure is error correction, there are still the following defects: 1, and the reasons for starting criminal retrial are not operable. Because there is no clear judgment standard of "there is a mistake", it is very common for judges to start retrial at will or refuse to start retrial in judicial practice, which endangers the authority and stability of effective judgments. The lack of judicial authority, in turn, aggravated the crisis of confidence in the quality of trial, leading to more and more "misjudged cases", making retrial more and more passive and losing the original meaning of program design. 2. Taking "there are mistakes" as the starting condition of retrial is easy to cause a strange circle of deciding first and then reviewing. Whether the effective judgment is really wrong can only be concluded through criminal retrial procedure. If the original judgment is upheld after retrial, it contradicts the reason that it was "really wrong" before the trial. 3. Using the standard of "there is indeed an error" as the starting reason for criminal retrial will also make it difficult to start the criminal retrial procedure for the misjudged cases in which the parties have reasonable doubts, because the judicial organs can arbitrarily reject the parties' complaints on the grounds that the effective judgment is not "there is indeed an error" when reviewing the parties' complaints.
Thirdly, remould the function of correcting misjudged cases in criminal retrial procedure.
There are many disadvantages in the practice of criminal retrial procedure in China, which hinder the function of criminal retrial procedure to find and correct misjudged cases. Therefore, it is urgent to reform and improve the current criminal retrial procedure, so as to get out of the strange circle that only when the victim is resurrected or the real murderer is arrested can the criminal retrial procedure be started to correct the wrong case.
(1) Establishing the guiding principle of criminal retrial in favor of the defendant.
"Seeking truth from facts and correcting mistakes" is a very beautiful judicial concept, but it is neither suitable nor possible for judicial practice. It should be combined with modern criminal justice concepts such as procedural justice, human rights protection and the principle of non bis in idem, and the guiding principle of criminal retrial should be established in the criminal retrial procedure, that is, "in correcting misjudged cases that are beneficial to the defendant, we should adopt objective standards and insist on' correcting mistakes', while correcting misjudged cases that are unfavorable to the defendant should be strictly restricted according to the principle of non bis in idem and the theory of res judicata, and in principle it should not be corrected." Specifically, it should include the following contents: First, the fact of "finding guilty and innocent" due to insufficient evidence and unquestionable standard of proof should be based on the principle of presumption of innocence and no doubt, and should not be regarded as a criminal misjudged case that should be corrected. In principle, the defendant is protected by the principle of non bis in idem and the principle of prohibition of double jeopardy, and shall not be deprived of this legal right through retrial. Secondly, in the application of law, the mistakes of "this crime is identified as another crime", "felony is identified as a misdemeanor" and "misdemeanor is identified as a felony" should also be based on the principle of benefiting the defendant and the principle of non bis in idem. Generally, it should not be recognized as a criminal misjudged case, and criminal retrial procedures should not be initiated. But there are two exceptions: one is perjury; Second, judges bend the law by taking bribes. If it is confirmed that one of the above two situations exists and has a substantial impact on the original referee, the retrial procedure can be started.
(b) The court should not initiate a criminal retrial on its own initiative.
In our country, the court has the right to take the initiative to find cases with wrong effective judgments, initiate criminal retrial procedures, and correct mistakes. Judging from the basic judicial principles and judicial practice, it is not feasible for the court to initiate criminal retrial ex officio.
First of all, "ignoring not to sue" and "separating prosecution from trial" are the basic principles of modern litigation. As the judge of criminal retrial procedure, the court should remain neutral. "In essence, judicial power itself is not active. If you want it to work, you must promote it. Inform it of a criminal case and it will punish the criminal; Ask it to correct an illegal act, and it will correct it; Let it examine a bill and it will explain it. But it can't hunt down criminals, investigate illegal acts and picket the facts by itself. " At the same time, if the court initiates the criminal retrial procedure voluntarily, it needs the court to find out whether the original effective judgment is really wrong, and to find out whether the original judgment is really wrong, it must take the initiative to investigate and investigate the relevant facts involved in the original judgment. Only in this way can we determine whether to start the criminal retrial procedure. In our country, the court obviously does not enjoy the right of criminal investigation, and the court takes the initiative to find a wrong case and initiate a criminal retrial, which violates the modern litigation principle. Secondly, the legislative intention of giving the court the right to start the criminal retrial procedure is good, but it will be difficult in practice. The Criminal Procedure Law stipulates that "if the presidents of people's courts at all levels find mistakes in ascertaining facts or applying laws, they must submit them to the judicial committee for handling." However, before the effective judgment is made, the case is generally discussed and decided by the judicial Committee of the court. Unless sufficient evidence is found, it is difficult for the court of first instance to change the original effective judgment. What's more, even if mistakes are found, it is not easy to admit and correct them. However, the Supreme People's Court and the people's courts at higher levels generally don't take the initiative to comprehensively check whether there are any mistakes in the cases that have been effectively judged by the lower courts, and it is difficult to find misjudged cases only through routine general trial or review. Even if a misjudged case is found, it will often proceed from maintaining the social image of the court system, and it will not be easy to raise the case or order a retrial. Generally speaking, the court itself is not easy to find its own mistakes, and for various reasons, it is not easy to admit and correct its own mistakes, which makes it difficult for the court to start criminal retrial procedures to correct misjudged cases. Finally, compared with the criminal retrial system of major foreign countries, there is no provision that the court can initiate criminal retrial on its own initiative. To sum up, the court should not initiate a criminal retrial on its own initiative, but should initiate a criminal retrial procedure to correct the misjudged case on the premise that the procuratorate raises a retrial protest and the parties apply for retrial.
(3) Restrict the right of protest of procuratorial organs in criminal retrial.
Correcting or facilitating mistakes is not only the responsibility of the parties, but also the obligation of procuratorial organs as legal supervision organs to actively correct mistakes. Therefore, the procuratorate's criminal retrial protest can directly start the criminal retrial procedure, which is reasonable and well-founded, and is also conducive to correcting misjudged cases. However, in practice, most procuratorial organs put forward criminal retrial protests from the victim's standpoint, ignoring the protection of the defendant's human rights. Therefore, in order to protect the defendant's legitimate rights and interests, it is necessary to reasonably limit the procuratorial organ's right to protest in criminal retrial. The author believes that the procuratorial organ can lodge a retrial protest in favor of the defendant at any time without any restrictions; The procuratorial organ shall make necessary restrictions when lodging a retrial protest against the defendant. For example, if the defendant is not guilty and the procuratorial organ retries the protest, it should be put forward within two years after the effective judgment is made; If the defendant is in custody after serving his sentence, the procuratorial organ can only lodge a retrial protest within the time limit when the defendant's sentence has not been completed, and can only protest once.
(4) Establishing the application system for criminal retrial parties.
Often only the defendant, his legal representative and close relatives think that the case is a wrong case and have a strong desire to correct it. It can be said that the defendant's complaint is a powerful force to promote the correction of criminal misjudged cases. Therefore, we should provide standardized channels for defendants to appeal, so as to give full play to the function of finding misjudged cases. Due to the serious disconnection between appeal and criminal retrial, it is difficult for the defendant to start the criminal retrial procedure in time and effectively through appeal and correct the wrong case. Therefore, the complaint should be included in the proceedings to make it actionable and effectively protect the parties' right to correct mistakes.
Civil law countries have set up a complete retrial procedure, which has become an important way for the parties to realize the legal relief of the wrong effective judgment through litigation procedures. China's civil procedure law and criminal procedure law both stipulate the system of parties applying for retrial. Proceeding from the unity of the legal system and the needs of practice, the criminal procedure law should establish a retrial application system. The application for criminal retrial is a kind of litigation activity in which the parties make a written request for a legally effective criminal judgment, requesting the procuratorial organ to protest or the court to retry. Criminal retrial application is different from criminal appeal. It is a legally binding lawsuit. As long as the parties apply for retrial according to law, the review of retrial application will become a litigation activity and enter the litigation procedure. The judicial organ must accept and examine the application in strict accordance with the law, and cannot shelve and perfunctory the retrial application, which will help the judicial organ to find the wrong criminal case in time through the appeal of the parties. Of course, in order to prevent the parties from abusing the right to apply for retrial, the Criminal Procedure Law can stipulate the conditions and time limit for the parties to apply for retrial, so as to institutionalize and standardize the application for criminal retrial.
(5) Improve the reasons for starting the criminal retrial procedure.
Under the limited judicial resources, how to prevent unjust, false and misjudged cases from being corrected in time and effectively, and how to improve the starting reasons of criminal retrial procedure are particularly important. The author believes that, first of all, the reasons for starting the criminal retrial procedure should be clear and specific, which is convenient for judicial application. Secondly, in order to protect the interests of the defendant, the reasons for starting the criminal retrial procedure should be clearly divided into the reasons that are conducive to the defendant's retrial and the reasons that are not conducive to the defendant's retrial. This provision is also a common practice in foreign countries. In China, some scholars believe that: "If the original judgment is really wrong in fact finding and law application under any of the following circumstances, a retrial in favor of the sentenced person may be initiated: 1. It is unacceptable to assume that the material evidence on which the original effective judgment was based was forged or tampered with, or that the verbal evidence on which the original trial was based was verified to be untrue or obtained by illegal means such as torture. 2, the same facts of the case, the discovery of new criminals, enough to prove that the original guilty person is innocent. 3, according to the conviction and sentencing evidence does not meet the statutory standard of proof, that is, the evidence is insufficient. 4. There is a serious contradiction between the discovery of new evidence and the evidence that proves the facts of the original judgment. 5. Mistakes in the application of the law mainly refer to violations of the provisions of the criminal law on the constitution of a crime, violations of the time limit for prosecution and sentencing violations of the provisions of the criminal law. 6, judicial staff in the process of handling corruption and bribery cases, favoritism, perverting the law. The reason for retrial of the sentenced person should be strictly limited to: 1. The omission of a felony sentence means that the original judgment was found innocent because of insufficient evidence, and later new evidence was found to prove that the original acquitted person did commit a felony. 2. Due to the following two situations, the wrong verdict is innocent, the felony is lightly sentenced, and the sentence is extremely light: the judicial staff has committed corruption, bribery, favoritism, and perverting the law in handling cases; The sentenced person colludes with witnesses and appraisers to commit perjury or false appraisal. " The author agrees with this view. Finally, the reasons for the parties to apply for retrial should be based on the possibility of errors in the effective judgment. As long as the parties can raise reasonable doubts about the evidence chain based on the original judgment and break the uniqueness of the conclusion of the evidence chain, they can start a criminal retrial, avoid deciding first and then trying, so as to find the wrong case more timely through the complaints of the parties and effectively start the criminal retrial procedure to correct the wrong case.
Conclusion: belated justice and injustice. Yes, it may cause irreversible personal injury to the client. Decades of time, emotion, reputation and image can not be recovered by hundreds of thousands or millions. However, it may not be too late for the rule of law in the whole country. At the same time, it is also a little effort to realize criminal justice and social fairness and justice. Justice, law and rule of law are not ends in themselves, but fairness and justice are the ends. Although some justice comes late, it must not be absent. As Ke Xle, the author of "Research on Eight Misjudged Cases in America" said: "If a social system only allows people to indulge in their own advantages, but does not allow people to study and openly talk about their own shortcomings and problems, over time, this system will become rigid and may lead to disintegration; On the contrary, we can make progress and have vitality. Only in this way can the rule of law progress and seek fairness and justice.