On the Path Selection and Theoretical Reflection for Initiating Criminal Retrial
The fourth revision of The Criminal Procedure Law of the People's Republic of China is imminent,while the academic community has not yet reached a consensus on how to optimize the path for initiating criminal retrials.Combining official statistical data with an empirical investigation of 1818 retrial judgment documents,it can be seen that the path for initiating retrials presents a three-fold entanglement in practice.Firstly,retrials are initiated ex officio more frequently than upon application.Secondly,more cases are initiated by the original trial courts rather than by superior courts.Thirdly,the procuratorate initiates more retrials through appeals which is becoming mainstream.This current situation can be examined from the following three dimensions.According to the theory of criminal res judicata,the initiation of retrial should be restrained and prudent,which is not in line with initiating ex officio.From the perspective of subject neutrality,it is difficult for the subject of review to avoid the collusion of interests and eliminate subjective prejudgments which have resulted in a high rejection rate of petitions.From the perspective of functional complexity,appeals for retrials have both litigation and supervision functions,and whether they can directly initiate retrials remains to be considered.In view of this,the court's power to initiate retrials ex officio should be stripped away and the dualized petition review subjects should be reconfigured.Moreover,the effectiveness of appeals for retrials should be distinguished based on the causes.Through the above improvement,an extraordinary relief procedure can be constructed in which retrial and extraordinary appeal are carried out in parallel.
initiation of criminal retrialpetition for retrialcriminal res judicataappeal for retrial
万方数据
维普
