Han Shaofeng Ma Hui

    [Abstract] the article to our country criminal appeal system as the research object, from the perspective of procuratorial supervision perspective, taking Taiyuan city in recent years for the status of criminal appeal cases as samples, makes in-depth analysis of the existing in our country's criminal appeal system problems, and puts forward some suggestions to perfect our criminal appeal system, such as to perfect the criminal trial procedure, appeals related documents submitted to the system, clarifying the scope of procuratorial organ position and function, hearing appeals, strengthen the procuratorial organ allocation of resources.

    [keyword] appeals to the procuratorial supervision

    The criminal appeal system is an important legal system, has the right relief and the dual function of judicial supervision. From the present situation of criminal appellate system in our country, obviously presents "the heavy, light of second trial", the procedure of second instance in criminal proceedings long-term lack of attention, lack of legal provisions in the criminal appeal system comprehensive, detailed, standardized, thus positioning fuzzy, anomie, the lack of supervision of the program in practice, which restricts the exertion and effect of the appeal system function.

    2012China to "Criminal Procedure Law" was revised, the revised "Criminal Procedure Law" of our country's criminal litigation system for the reform and the consummation, the appeal system corresponding to a certain degree of modification, the biggest luminescent spot is to be hearing appeals made a clearly defined scope, the appeal case trial more plausible. But as we see, the criminal appeal system modification is still very limited, for the basic problems of the criminal appeal system in the absence of supervision made no more active response. Therefore, this paper is based on the prosecutorial supervision power angle, starting from practical investigation, to our country criminal appeal system are discussed.

    Investigation and Analysis on the circumstances of cases on appeal in Taiyuan City

    The research object is the Taiyuan City Intermediate People's court2009~2011Appeal in criminal cases accepted (excluding the years of protest and appeal). We appeal each year for three years, based on determining the total number of cases, the cases were divided into trial and no trial of two types, and make not the court trial after the results (including commuted retrial, reimbursement, upheld and other treatments) statistical proportion of the total cases the basic situation, see table1And the table2:

    From the table1As can be seen, Taiyuan appellate criminal case without trial for normal, to trial for the exception. In the past three years, only27A case of appeal hearing, and1490Parts are written trial. The prosecution of legal supervision of a case on appeal only accounted for all cases1.77%.

    From the table2It is not difficult to see that, in the city of Taiyuan is not the trial court of appeal cases, overall or upheld, the proportion of the average61.75%The proportion of cases for retrial, return some facts unclear, insufficient evidence for the average16.91%The two paragraph, and78.61%The court of the second instance trial, which belongs to the category of the normal, but is adjudged to achieve an average rate21.34%The ratio reflects the imperfection of legislation leads to the lack of supervision of the procuratorial organ.

    These are our conclusions according to the statistics, at the same time, we collected2008Years by the Taiyuan City Intermediate People's Court of the appeal procedure and revision25A criminal judgment, through the study found the following two questions: first, in the revision of the appellate case, the appellant mitigating high percentage. According to the25A revision of the criminal judgment shows the contents of the view, the appellant's penalty were reduced; second, in the revision of the appellate cases, the discretion of the judge is larger, the lack of necessary supervision.

    The above research, fully reflect the current criminal appeal cases exist many institutional problems need to be improved, it is also due to the lack of in the system of justice questioned.

    Existing in our country's criminal appeal system problems

    The procuratorial organ function fuzzy. In the criminal appeal system, procuratorial organs should undertake what kind of functions, play the role of legal supervision, "Criminal Procedure Law" does not clearly defined, although "people's Procuratorate rules" provisions of article 362nd of the criminal appeal procuratorial organs in the case of the duties of the base, but its content has not been recognized by the legislation, led to the shall not know what course to take in the appellate procedure, even in the cases on appeal, court prosecutors perform the responsibilities of legal supervision or accused of criminal responsibility, or the two who have both at the same time, cannot be distinguished in practice.

    The scope of procuratorial supervision is unknown.2012Years after the modification of "Criminal Procedure Law" clearly what appeals should be open a court session, however, this "clear" is still relatively, the problem is the 223rd of fourth specified in "other shall open a court session" belongs to the general provisions, explain the space is very large, which belongs to the "other cases it shall open a court session", it is not clear.

    The procuratorial supervision content is not clear. From the macro aspect, as a legal supervision organs, in the appellate procedure is to fulfill the function of legal supervision, but these functions is reflected in what respect, specific to what, what problem, supervise and in what procedures, lack of legal basis.

    Application settings cause the lack of supervision system. In the cases on appeal document delivery application settings, a copy of the appeal petition without service superior Procuratorate, the procuratorate not know the appeal procedure is started, at the same time, the referee documents need not be served on a superior people's Procuratorate, the procuratorate cannot timely that the progress of the case, can not be timely and effective.

    Some suggestions on Perfecting China's system of criminal appeal

    From the legislative level to re-examine the trial level system, perfect the criminal procedure of second instance. Lack of criminal appeal system supervision in our country, the most direct reason lies in the defects of legislation. From the1979Years to2013Years, "Criminal Procedure Law" on the procedure of second instance in accordance with the procedure of first instance of the. Advantages of this rule is the law, clear, simplified and convenient application, but the drawback is that the procedure of second instance is defined as a procedure of collateral, virtually deprived of independence of trial procedure, a simple repeat trial procedures.

    Although nominally set the second instance procedure, but the emphasis is clearly not enough, resulting in the weakening of the function of our criminal procedure of second instance, the appellate procedure function is also affected by the. Therefore, to truly improve the appeal system, must fundamentally trial level structure of our country is having a profound understanding of the position and function of the procedure of second instance, re positioning, can we truly will appeal system into the track of legal supervision.

    The appeal system in the position and function of the procuratorial organ. From the current situation, main problems of our country's criminal appeal procuratorial supervision system is not in place to implement, lacking supervision. Therefore, strengthening and role of procuratorial organs in the appeal system in the position is an urgent task. The author suggests, the NPC Standing Committee should be to explain the form of legislation, clear the court and procuratorial organs in procedure of second instance their own position and responsibility, consider the function status of the procuratorial organ in the second instance as "the first instance on the public prosecution and legal supervision function continuation and extension of the important function of supervision, but on a full range of." 1

    To further clarify the scope of hearing appeals.2013Implementation of the "Criminal Procedure Law" will be hearing the appeal of the list, but in two hundred and twenty-three in a miscellaneous payments "other shall open a court session" for the interpretation results in differences and disputes appear, should be further detailed.

    The appeals court conditions. At present, the appeal cases whether the trial by a people's court, this is because the "facts" discretion in the hands of the judge. The author thinks, trial court that the appeal is not necessary to hold a hearing, it shall timely notify the people's Procuratorate at the same level consulting case materials, and writing to seek the views of the prosecution. Thus, in addition to ensure the court trial power, increase the suggesting right of the procuratorates, effectively prevent the abuse of power is not hearing, so as to ensure the prosecution of legal supervision of the cases on appeal.

    Improve the appeal cases related documents filing system. At present, the procuratorial organs can not understand the appeal case progress problem, can consider the case to make the following provisions: for the defendant, the plaintiff and defendants in incidental civil actions and their legal representatives to appeal in criminal cases, through the people's court, the people's court shall original trial on appeal within three days after the expiration of the period for appeal copy to the people's Procuratorate at the same level, the people's Procuratorate shall upon receipt of a copy of the appeal petition within three days after the upper level people's Procuratorate submitted; for the person directly to a higher people's Court of appeal in criminal cases, the people's court shall within three days will be a copy of the appeal petition to people's Procuratorate at the same level up over a court in the streets the appeal of the day, the people's procuratorate should be in receipt of a copy of the appeal petition within three days after the upper level people's Procuratorate submitted; for the case, the people's Court of second instance court of appeal in the court, shall within five days of the judgment by the parties and the people's procuratorate. Other cases of second instance judgment can be entrusted to the people's court at the same level and submitted to the people's Procuratorate, the people's Procuratorate to achieve full supervision of a case on appeal.

    Strengthen the procuratorial organ allocation of resources. Strengthen the supervision of the appellate case, means that the future of the appellate case review and trial number will surge. The resources at present, the completion of the task will be very difficult. From the current situation, whether the people's court or the people's Procuratorate, are facing the case much less situation, after the formal implementation of the new "criminal procedural law", the people's court and procuratorial organs are faced with the contradiction between the lack of judicial resources and a large number of cases. On the procuratorial organ, the most important measure is to increase the public prosecution department staffing, set the second case supervision institutions independent, by the person responsible for the second case review and trial work.

    (the author unit: People's Procuratorate of Taiyuan city Shanxi province; this is a "non issue" protest in cases of public prosecution stage research results, project number:TY2011B02)

    Notes

    The first intermediate people's Court of Beijing, Beijing people's Procuratorate first branch series: "criminal procedure of second instance in depth discussion", Beijing: Law press,2012Years, the72Page.

    Editor/Wang Kunna