Deconstructing Negative Externalities:Functional Spillover and Normative Reentry of the Remand of Retrial
The primary value of revoking the original judgment and retrial lies in the violation of the sanction procedure,review of facts should be limited.While in practice,it has been hindered by functional spillover for a long time.The abuse of adjudication leads to evasion of judgment,which leads to the prejudicial to defendants.On the one hand,the ambiguity of remanding function intensified the excessive exercise of discretion,on the other hand,the objectivization tendency of the right subject weakened the supply of procedural relief,both of which showed negative externalities.In response,the internalization of external costs emphasizes the self-absorption of sanction costs and the positive incentive of substantive relief,which is consistent with the operation mechanism of procedural sanctions,and can provide a reference for solving the negative externalities of remanding.Take the Fourth Revision of the Criminal Procedure Law as an opportunity,it is necessary to maintain the balance between procedure sanction and fact-reviewing of the function of remanding at the level of enactment law,prevent the arbitrary exercise of discretion,and eliminate the negative externalities of function spillover.It still needs to enhance the positive externality,clarify the subject status of the rights of the accused,allow them to waive the right of blaming,provide procedural relief through the change of compulsory measures.
remand of retrialprocedure sanctionfact-reviewingright remedynegative externality
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