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Research on Non Bis in Idem Principle

Author: SongZuo
Tutor: TanQiuGui
School: China University of Political Science
Course: Procedural Law
Keywords: Bis in idem Program benefits Prohibits double prosecution Res judicata
CLC: D925.1
Type: Master's thesis
Year: 2011
Downloads: 204
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Abstract


Based on the comprehensive historical analysis, comparative analysis and value analysis method based on the principle of non bis in idem connotation, effectiveness system, system improvement and other issues are analyzed and elaborated by and closely related to the principle of non bis in idem theoretical subject matter of litigation, litigation system is effective, res judicata effect of the study, analysis of China on the principle of non bis in idem provisions of the relevant legislation, to explore problems and issues its reasons for the formation, then put forward a sound principle of non bis in idem The basic idea. The main content is divided into five parts, the basic content is as follows: The first part defines the principle of non bis in idem basic connotation, history and values. Bis in idem principle as a modern civil law countries is a basic principle in civil law countries mainly include two aspects of the basic elements: prohibit prosecution and res judicata effect of two heavy; This problem, common law countries, through both contracting matter of principle be regulated, specifically including the exclusionary rule and the point of contention request exclusion rules. This paper mainly around later in the relevant system of civil law countries start discussion. Bis in idem began in earnest in the Roman period, \have reflected. For the value of non bis in idem principle, this paper introduces the general awareness of the value to be based on the analysis of the principle of non bis in idem benefit relationship with the program, both in the analysis of the concept, system, practice fit, pointed out bis in idem principle is the core value of the program benefits are realized. The second part studies the effectiveness of the principle of non bis in idem system and its relationship with the program benefits. Articles from the prohibition of res judicata effect of the double prosecution and two aspects, defining the narrow and broad ban two heavy prosecution coverage of the analysis of its relationship with the program benefits, thus explores two important criteria prosecution issues in the old substantive law that the new subject matter of litigation, said the new lawsuit says the subject of substantive law theory analysis, put forward the same subject matter of litigation, the parties of the same criteria. After judgment principle non bis in idem principle is implemented through the dual role of res judicata, and about the relationship between the principle of non bis in idem should be used as a generic concept of res judicata for use. Then from the main range, object range, the time range investigated judgment commenced after Idem scope. The third part on the principle of non bis in idem exceptions discussed. Bis in idem principle there are several major exceptions: Enter retrial procedure cases, there is no claim of having predictable cases concerning personal status cases, judgments or lost the case, the article on various scenarios and their existence is reasonable was analyzed, discussed and procedures for effective implementation role. The fourth part of the existing legislation relating to the requirements of the principle of non bis in idem and problems are analyzed. Although China's current legislation prohibits two heavy res judicata effect of both the prosecution and to a certain extent, reflect the spirit of non bis in idem, but there is a lack of uniform standards regarding the litigation department is res judicata did not make it clear that complaints system generalization , retrial procedures set unreasonable and other issues, the reason is that the concept of traditional litigation, specific social and historical development concept and program effectiveness missing reality. Section V presents a sound principle of non bis in idem idea, pointing out that the legislative ah oh perfect Idem need from the following aspects: the Civil Procedure Law clearly stipulates the principle of non bis in idem; legislation to determine regarding the recognition criteria to the old set of substantive law, said the subject of litigation as the basis of criteria; improve judicial system is res judicata system; reform retrial procedure established retrial; perfect the relevant system, strengthen the party's procedural safeguards.

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CLC: > Political, legal > Legal > Chinese law > Procedural Law > Civil Procedure Law
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