Problems and Countermeasures in the Second Criminal Procedure of Our Country

王曉倩

First， the concept and characteristics of criminal procedure of second instance

1. The concept of second instance of criminal procedure： According to the provisions of "China's Criminal Procedure Law，" the second instance procedure refers to the general rules of procedure used by the upper court of the first instance court to reopen the case on appeal or protest. 2. The second instance of criminal procedure features： First， the trial organization to further strengthen. Second， insist on a comprehensive review of the principle. Third， the court trial， supplemented by written trial. Fourth， the second instance to follow the principle of appeal without penalty. Fifth， refer to the first instance hearing.

Second， the defects of China's criminal procedure second instance analysis

（A） the second instance of criminal procedure of the virtual and formalization

In the judicial practice， due to the lack of legislation and the imperfect system of the court system， the court gradually formed a trial and separation and the court trial became a mere formality. Between the upper and lower courts， the abuse of the citation and instructions system led to the mere formality of the criminal second instance procedure. Seriously affected the function of criminal procedure and the fairness of judiciary.

1， imperfect system of judicial committee led to the judge's right to be "deprived of"

Trial committees are unique to our trial system. According to the provisions of the Criminal Procedure Law of our country， cases involving major complications and difficulties should be submitted to the judicial committee of the court for discussion and a final decision. The judicial committee is not a long-established organizational unit， but it is also created on the basis of a case and also dissolved on a case-by-case basis.

2， referral and instructions system led to the second instance can not fully realize the function

In judicial practice， in order to reduce the risk of misjudgment， judges in the trial process of conviction and sentencing difficult problems， often take the initiative to consult and report to the higher courts. The final adjudication of the second instance actually became the first instance and the trial was finalized. As a result， the procedure of the second instance was mere formality. In the meantime， the defendant's right of appeal was also denied in disguise， seriously violating procedural justice.

（B） the second instance of criminal procedure to start the way is not perfect

There are two ways to start the procedure of criminal second instance： one is appeal of litigant participant； the other is protest of people's procuratorate. The defendant's appeals are a way for parties to seek remedies for their rights. Protest is a way for people's procuratorate to carry out legal supervision.

（C） a comprehensive review of the principles of the problems

1， The principle of a comprehensive review runs counter to the passivity and neutrality of the judiciary

Judicial passivity refers to the inevitable requirement of judicial justice and judge neutrality. In our country， in accordance with the principle of a comprehensive review， the judges of the court of second instance are not subject to the scope of the appeal and protest during the trial. They also conduct a voluntary review of the non-controversial part of both the prosecution and the defense.

2， a comprehensive review of the principle of reducing judicial efficiency

The purpose of the criminal second instance procedure is to find and correct the mistake of the court of first instance in the facts ascertainment and application of law and safeguard the authority and impartiality of the judiciary. However， the implementation of the principle of comprehensive review will surely help the error correction function of the second instance trial at the expense of judicial efficiency.

（D） there is loopholes in the principle of appeal without penalty

The principle of not being sentenced for appeals is a common lawsuit principle adopted by all countries in the world. Similar to the principle of no-change of interests， the appeal by the court of second instance can not be further detrimental to the defendant only if it is appealed for the benefit of the defendant.

1， the prosecutor's protest rules are not perfect

Procuratorial organs are the legal supervisory organs of our country， that is， to ensure the objective and fair implementation of the law. Therefore， it not only has the function of representing the state on charges but also has the obligation to safeguard the legitimate rights and interests of defendants objectively and justly.

2， there are loopholes in the provisions of the crime of multiple crimes of the defendant

The core issue of not punishing appeals is "no aggravating punishment".

Third， improve China's criminal second instance of the response

（1） To earnestly implement the judicial power of criminal second instance proceedings

1， Restricting the standard of the case submitted to the trial committee

2， abolition of instructions and instructions system

The crux of resolving the issue that the right to trial of the second instance in our country is illegitimate lies in strengthening the independence between the superior and inferior courts in our country. Only by realizing the genuine independence of the upper and lower courts can we give full play to the trial function of the first instance in the full trial of the case so that the second instance procedure can play the function of correcting the wrong judgment of the first trial and safeguarding judicial fairness.

（B） to further improve the criminal procedure to start the second instance

Both appeals and protests are conducted in court to remove the differences arising from the different actors involved in the proceedings. However， it is possible to decide whether to apply the ordinary procedure or the simple procedure according to the nature and complexity of the case

（C） establish the principle of limited review

In order to ensure procedural fairness， the principle of a comprehensive review must be abolished and the principle of limited review established. The scope of trial of courts of second instance within the scope of appeals and protests.

D） Determine the principle of no-benefit change and amend the principle of not appending the sentence

（E） improve the second instance procedural decision types apply

1， narrow the scope of "reformatting"

2， improve the way sent back to the trial