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On remand the drawbacks

Author: MaZhiShan
Tutor: XuLanTing
School: China University of Political Science
Course: Procedural Law
Keywords: Second instance Facts are unclear Remand Malpractice
CLC: D925.2
Type: Master's thesis
Year: 2011
Downloads: 130
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Abstract


Remand system, refers to the People's Court of second instance has not yet legally effective verdict, have been identified through the facts and the law applicable to trial after the original judgment that the facts relied on insufficient evidence, or in violation of procedure when the ruling to revoke the first instance verdict, and the case sent back to the trial court to rehear the litigation system or program. Objectively speaking, it is difficult to \status and importance, except to identify the people's court in favor facts of the case in order to make an objective and impartial trial results, maintaining the legitimate interests of the defendant, the \legal supervision of the work of the trial court as an important tool. So, in a sense, the system for ensuring the quality of trials, the interests of justice and in the specific case litigation practice the concept of protection of human rights have a certain positive significance. However, due to 97 years of Criminal Procedure did not pre-conditions for remand made clear that, in addition to the relevant judicial staff's repeated abuse of the system, making remand especially on clear facts on the grounds of remand gradually with our current litigation system and the specific principles of contradiction, conflict, and in judicial practice had many shortcomings. These conflicts and drawbacks mainly as follows: with the provisions of the Criminal Procedure Law of two tiered system and Appeal not Infliction contrary to the principles, and not conducive to the Conflict thoroughly implement the spirit of the judiciary; Meanwhile, the facts are unclear as not only by the lack of practical remand operability, and tend to impair the independence of the People's Court and thus violated the defendant's legitimate rights and interests, thus lead to judicial corruption have had a very bad influence in society \not only increases costs, and marked the beginning of this waste of judicial resources and fundamentally contrary to the proceedings of the \It is for these reasons, I believe that in our current criminal proceedings, repeal, citing insufficient evidence to clear facts of the remand system is very necessary, the second instance court for an appeal or protest cases, after hearing only choose to maintain verdict for commuted two approaches, this way, even if the trial facts are unclear, insufficient evidence, and should be made by the Court of Appeal judgment of acquittal, without having to remand the case.

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CLC: > Political, legal > Legal > Chinese law > Procedural Law > Code of Criminal Procedure
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