Appeal not infliction principle is a principle of criminal procedure is widely used in the world, China's current criminal procedure law has been clearly defined, and established as an important principle of criminal procedure. The so-called appeal not infliction principle refers to the people's Court of second instance trial only defendants appeal cases, no trial principle for any reason to increase the defendant punishment, is an important principle in the second trial court must observe. The basic purpose is to prevent the defendant from the adverse consequences of punishment, lifting its ideological concerns, the protection of the right to exercise, in order to fully protect and play the role of the appeal system. This principle was established in China and the implementation of, and played a positive role in the judicial practice of criminal proceedings, but there are also some problems that can not be ignored, needs to be further improved, conditional restrictions apply. We make analysis on the application and limitations of problems related to appeal not infliction principle.

Application and limitation, appeal not infliction principle.

China's "criminal law" the 190th stipulation: "the people's Court of second instance trial the defendant or his legal representative, counsel, close relatives of the appeal case, shall not increase the criminal punishment on the defendant. The people's Procuratorate or the private prosecutor appeal, not subject to the provisions of the preceding paragraph." That is to say, the people's Court of second instance trial only an accused person to appeal the case, shall not be any reason to increase the defendant punishment, if changed is lighter than the original judgment of the penalty, not suitable for or in disguised form is more important than the original decision of punishment.

  (a) applicable to appeal not infliction principle.The first paragraph of article 190th of criminal procedure law has clear provisions, interpretation of the Supreme People's court "on the implementation of the criminal procedure law '' of the people's Republic of China (hereinafter referred to as" "explain") 257th made further explanation. Accordingly, suitable for the appeal does not add the punishment principle, the following should grasp: (1) the same kind of punishment, punishment or no additional punishment, shall be the number and duration of increase or prolong the penalty. (2) without additional punishment in the punishment. (3) not by sentence commuted the lighter to heavier punishment, such as the detention of 6 months to 6 months in prison. (4) may change the method of execution of punishment, the defendant sentenced to criminal detention or fixed-term probation, probation revocation or no probation period shall not be extended, the death sentence with a reprieve for immediate execution. (5) for a combined punishment for several crimes, neither aggravated decided to carry out the penalty, nor in upheld the penalty remains unchanged, a crime or several crimes in the punishment of the crime of aggravated number; (6) only part of the defendants proposed the common crime appeal, neither aggravate defendants filing an appeal of the punishment, don't aggravate other co accused penalty; (7) in a case of joint crime, the people's Procuratorate protest on the part of the accused only of judgment, the other defendants shall not increase the punishment. (8) the fact that no mistakes, only qualitative, not convict properly, without the aggravation of penalty circumstances, can change the charges. (9) the facts unclear, insufficient evidence and the case remanded, the court of first instance shall not increase the punishment.

  (two) the principle of limited appeal not infliction.Our country's criminal procedure law provisions appeal not infliction principle at the same time, also made clear the limits of the application of the principle. (1) the people's Procuratorate or the private prosecutor appeal, not subject to appeal not infliction restrictions. According to the "law of criminal procedure" in 190th, regardless of whether the defendant party whether to appeal, as long as the procuratorate and the private prosecutor filed an appeal, the people's Court of second instance may not appeal not infliction principle limit, according to the specific circumstances of the case, not only to increase the criminal punishment on the defendant, also can reduce or avoid the defendant in accordance with the law of punishment. (2) the facts are clear, the evidence, but sentenced to punishment is too light, or should additional penal apply without additional penal apply case trial in accordance with the procedure for trial supervision, re. "Explain" the 257th of the fifth paragraph: "the facts are clear, the evidence, but sentenced to punishment is too light, or should additional penal apply without additional penal apply case may not be revoked, the judgment of the first instance, directly increase the criminal punishment on the defendant or additional penal apply, nor can the fact is unclear or the evidence is insufficient for the people's Court of first instance to reopen. Must be in accordance with the law shall be commuted, decision, ruled that went into effect in second after the trial, the trial in accordance with the procedure for trial supervision again." That is to say, this kind of case can be determined by the court of second instance directly to increase the criminal punishment on the defendant, the people's Court of first instance cannot be sent back to the trial of indirect punishment, can only in the second trial, ruling after the entry into force in accordance with the procedure for trial supervision, judicial re. So, the only defendant appeal without a people's Procuratorate protest or appeal case of private prosecution, in accordance with the procedure for trial supervision to trial is the only legitimate channels, correct punishment. Strictly speaking, this provision is not limited to appeal not infliction principle, but the use of the procedure for trial supervision on a remedial error judgment due to apply appeal not infliction.

   The role and significance of the two, the appeal does not add the punishment principle.

The provisions of the criminal procedure law basic objective appeal not infliction is to lift the defendants appeal of ideological concerns, prevent the appeal and suffer adverse consequences, guarantee exercising the appeal right of the defendant, and play the role of the appeal system. In judicial practice, the appeal does not add the punishment principle is to some extent to achieve the basic purpose of played a positive role in. Mainly in the:

  (a) to guarantee the full exercise of the right of the defendant.Right to defense is the core of the criminal suspect, defendant litigation rights, and the right of appeal is the important content of the right of defense. The defendant appealed to protested his innocence or light offence grounds, to waive or reduce the punishment to his advantage, gain a more favorable outcome. The appeal not infliction system, can eliminate the defendant for fear of second instance aggravate the punishment and not appeal of ideological concerns, so as to enhance the confidence to appeal, to exercise the right to counsel fully, safeguard the Constitution and the law of litigation rights. On the contrary, if there is no specified appeal not infliction, the defendant appeals will face trial of second instance court may increase risk of punishment, will inevitably increase the defendant appeal of ideological concerns, limit the exercise of the right of appeal, lose a mitigated punishment opportunities and possibilities, obviously not conducive to the protection of the defendant litigation rights and implementation.

  Two.Conducive to the appeal system and two final trial system.On the basis of "Criminal Procedure Law" provisions of article 190th, criminal procedure of second instance startup according to two conditions: one is the defendant or his legal representative, counsel, close relatives appeal; two is the people's Procuratorate or the private prosecutor appeal. That is to say, the accused party appeal, is one of the main basis for starting the second instance procedure. Through the relevant data of Langfang City Intermediate People's Court of appeal cases: in 2007 and 2008 respectively, accounting for the total number of criminal cases 2.9% and 2.6%, and the defendant a party appeals respectively accounted for 97.1% and 97.4%. Visible, the criminal procedure of second instance is mainly caused by the defendant party appeal, appeal system and apply the system can really play a role, largely depends on the litigation defendants can be fully successful exercise. So the appeal not infliction, conducive to the elimination of the accused party appeal concerns, so that it can fully exercise the right of appeal, thus starting the procedure of second instance, the court can find and correct the wrong decision, the lower courts ruled that the timely, ensure and improve the trial level and quality, give full play to the procedure of second instance and the second instance being the final instance system effect of.

 (three) to strengthen the supervision and guidance of the trial, to improve the quality of trial.The establishment of the appeal system is designed by a higher court trial again, correct judgment on the conviction and sentencing error may exist. Appeal not infliction principle, lifting the ideological obstacles the accused party appeal, the defendant's fully exercise the right of appeal, open into the second channel by a trial, the appeal system role to play. At the same time also make superior court after a thorough review of the case to find and correct errors in the lower court trial, strengthen the supervision and guide the trial jurisdiction in accordance with the law, safeguard the correct exercise. The appeal not infliction principle also led to a certain extent, the judges to strengthen the sense of responsibility, not only can correct the wrong case, but also can improve the quality and level of the whole trial.
   Four.Is conducive to the promotion of the procuratorial organs to fulfill the responsibility of legal supervision, improve the appeal and appeal level.Some trial and error, not only is the Court issues, is also concerned with the investigation, prosecution. Because only the procuratorial organs at the same time put forward a case protested by the court of the second instance verdict and sentencing, that is too light, unlimited appeal not infliction principle, to increase the criminal punishment on the defendant. If the prosecution did not protest, the court of the second instance verdict and sentencing if found too light, the appeal does not add the punishment principle limit, cannot be changed, it can not guarantee that the judgment is correct, but also to a certain extent that prosecutors could not conscientiously perform their legal duties of supervision. The decision is wrong and the procuratorial organs have not found and protest, is corrected by the procedure of judicial supervision, the procuratorial organs can summarize the appeal and appeal from the experience and lessons, so that in the future on the wrong decision to protest, the criminals be punished. Visible, appeal not infliction principle can strengthen the procuratorial organ's responsibility, the more serious the exercise of the right of legal supervision, timely protest of heavier punishment cases, so as to enhance the appeal and appeal level.
    There are three, appeal not infliction principle in the application of.

Appeal not infliction principle in our country established and implemented thirty years, play a positive role in the judicial practice. But, because the related laws on the application of this principle is too mechanical, in the implementation process gradually shows some defects and problems.

  (a) appeal not infliction principle leads to the abuse of the defendant's rights.As everyone knows, criminal appeals to people not pay the cost of litigation, provisions appeal not infliction and lifted the risk the defendant appeals punishment. The defendant appealed that neither the litigation costs, and no litigation risk, there may be commuted penalty. According to the law, as long as the accused appealed against the decisions of the court of first instance, ruling, it may appeal, no conditions, without any reason. Therefore, do not require a trial of some illegal and wrong, as long as the defendant to appeal to appeal, it is highly likely to defendant appeal abuse phenomenon, which cause a lot of unnecessary cases of second instance. Taking Langfang City Intermediate People's Court of criminal appeal as an example: in 2007 a total of 202 pieces of the appeal, which upheld the withdrawal: 100 pieces, 48 pieces, 32 pieces to 26 pieces, remand. Although the trial is not a simple identification of all Appeals upheld and 73% cases of withdrawal is completely correct, but if there is no appeal not infliction principles of security, at least in part of the cases the defendant would not appeal, of course, can not be ruled out of which the defendant appeal abuse situation.

  (two) effects of the second instance court's work efficiency and the quality of handling cases.One sideAppeal not infliction principle, applicable, the criminal defendant appeal without any appeal risk, whether a judgment sentencing is appropriate, the trial process is legitimate, can be free to appeal. Or may be lighter punishment fluky psychology, or by an appeal to delay the time, more than punishment to no more than one year to remain in detention house, or delay was sent to prison and other reasons, the execution date of acceptance into forced labor and the death penalty, resulting in most criminal cases must pass through the procedure of second instance, the case quantity big increasing. This result will undoubtedly increase the burden of the court of the second instance, a lot of human and financial resources waste, will influence the efficiency of handling cases.On the other hand,Due to the restriction of criminal justice personnel shortage and trial period, in order to improve the efficiency of handling cases, the court of second instance in the trial process, as far as possible to the written trial way. Even in violation of the provisions of the 187th criminal procedure law, the omission of "ask the defendant, to listen to the other party, the defender, agent views" and other necessary procedures are written trial. The applicable laws written trial condition is: the case of appeal to the defendant, after "ask the defendant, to listen to the other party, the defender, agent views", to find out the facts clear, can not hearing, and by the. If the legal procedure is omitted, the entity judgment legitimacy, justice will be difficult to ensure. In practice, due to the reasons for the appeal case too much, time limited, inadequate trial judge, the court of second instance have often used this illegal trial, the defendant's right to defense is not the real maintenance, contrary to the fundamental purpose of appeal not infliction principle, also make the case quality is difficult to guarantee, it is may cause misjudged case. The purpose and significance of the two system is to make a mistake of judgment must, before ruling, has no legal validity, corrected promptly, to ensure the quality of handling cases. People's court at a higher level through the protested case trial, appeal, can often understand the trial work of the lower court, to play the role of judicial supervision, improve trial work, improve the efficiency and quality of trial. However, the appeal does not add the punishment principle, caused some unnecessary appeals entered the second instance, has seriously affected the work efficiency and quality of the trial of second instance court.

  (three) contrary to the basic principle of suiting punishment to crime.Principle of suiting punishment to crime is a basic principle in our criminal law, the principle that criminal social harmfulness degree is an important basis for sentencing. Be sentenced felony, misdemeanor sentences, not sentenced innocent, appropriate sentencing, penalty according to the crime. Appeal not infliction principle makes the court of second instance without additional penal apply to the first light sentencing or should additional penal apply case, can only be upheld, but cannot be increased to cause offence, the heavier the defendant sentenced to lighter or indulgence. This also means that the accused the penalty and the crime does not adapt, violated China's "criminal law" the provisions of article fifth of the principle of suiting punishment to crime, criminal liability can not realize the severity of the penalty and the crime should undertake to adapt, not penalty according to the crime. This is not conducive to the fight against crime and punishment, but also to educate and reform criminals.

  (four) the lack of illegal decision remedies. On the basis of the appeal does not add the punishment principle, the people's Court of second instance for only the accused party appeal, even in the presence of a trial of light sentencing or should additional penal apply without suitable problem, the court of second instance could be upheld. Two final trial system according to national conditions and determine the actual need, the criminal procedure law all programs, institutions should service to seek truth from facts, Mistakes must be corrected whenever discovered principle. Due to the provisions of the "appeal not infliction" principle, to seek truth from facts, Mistakes must be corrected whenever discovered not thoroughly carried out in the second instance, mainly in a mistake of judgment is unable to carry out relief. "Explain" the 257th of the fifth paragraph, sentenced to punishment is too light or should additional penal apply without additional penal apply case, must be in accordance with the law shall be commuted, decision, ruling effect in second after the trial, the trial in accordance with the procedure for trial supervision again. That is to say after hearing that must be changed, the court of second instance can only legally upheld the original sentence wrong, to be second judgment, ruling after the entry into force in accordance with the procedure for trial supervision, then re trial. Since so, court of appeal upheld the decision is only in order not to violate the provisions after the entry into force of appeal not infliction, sure to trial in accordance with the procedure for trial supervision again, this "does not violate" is just a formality, and in the waste of judicial resources for the price.

   Four, improve the appeal does not add the punishment principle of legislation.The applicable condition principle appeal not infliction too broad, lack of restriction and relief means, inevitably have a negative impact on criminal procedure. The key to solve this problem is the application of the principle of the necessary limitation, improve the relevant legislation.

  (a) the principle of suiting punishment to crime legislation pay attention to combine with the appeal not infliction, change only in the second start-up mode as the basis to determine whether the application of the "appeal not infliction" provisions.China's "criminal law" the 190th stipulation: "the people's Court of second instance trial the defendant or his legal representative, counsel, close relatives of the appeal case, shall not increase the criminal punishment on the defendant. The people's Procuratorate or the private prosecutor appeal, not subject to the provisions of the preceding paragraph." Visible, the applicability of appeal not infliction principle standard and basis, is to cause the second instance procedure according to the existence of people's Procuratorate or the prosecutor appealed whichever the case. If only the accused party appeal, without the people's Procuratorate or the private prosecutor appeal, court of second instance even think that a trial of light sentencing, not aggravate the judgment of the appellant; as long as there is a people's Procuratorate or the private prosecutor appeal, regardless of whether the defendant party whether to appeal, can judge aggravated punishment. The start in the second procedure for machinery in accordance with the requirements of the application to decide whether the appeal does not add the punishment principle, a serious breach of the principle of suiting punishment to crime. Therefore, should adopt the combination of principle and flexibility, in compliance with the principle of suiting punishment to crime under the premise, the appeal does not add the punishment principle of more flexible rules, namely, pay attention to the defendant's right to appeal, the appeal system can play role, so that the correct decision can be maintained, the wrong judgment corrected.

  (two) must be changed, the court of second instance can be modified.The original judgment due to improper application of the law in light sentencing, or should additional penal apply without additional penal apply case, the court of second instance can legally commuted. According to "explain" the 257th of the fifth paragraph of modification, defined as: "the facts are clear, the evidence, but sentenced to punishment is too light, or should additional penal apply without additional penal apply case, must be in accordance with the law shall be commuted sentence. If the second judgment, ruling after the entry into force, in accordance with the procedure for trial supervision should be tried again." The so-called "sentencing" includes two principal penalty and accessory punishment; sentencing "too light" is usually understood as the crime of no people's court statutory mitigating circumstances, sentenced to a punishment in the punishment to the crime rate, or although sentencing is within the range of statutory penalty, but do not have from the light plot behavior has been a lighter punishment. From the view of substantive law, sentencing "too light" is not in accordance with the statutory sentencing sentencing, which belongs to the erroneous application of the law. In order to protect the defendant's right to defense, eliminate its appeal infliction concerns, which is caused by the improper application of the law of the sentence "too light" should be applied to no statutory mitigating circumstances and sentenced to a punishment in the punishment of the span, namely of sentencing sentencing as "too light", to the exclusion of the applicable law is correct but in the sentencing range of sentencing extremely light "". That is to say, for there is no statutory mitigating circumstances and sentenced to a punishment in the range of statutory penalty following "too light" verdict, the court of second instance trial without appeal not infliction limit. The additional penalty, additional penalty shall be applicable and not applicable, also belongs to the improper application of the law. So not applicable for light sentencing or should apply additional punishment, the court of second instance shall be revised, not in accordance with the procedure for trial supervision after the re trial. If the decision, ruled that the effect in second after the trial, found the original must content is too light or should additional penal apply not applicable, must be in accordance with the law revision, in accordance with the procedure for trial supervision should be a new trial. Such regulations to avoid decision errors found in the second instance, must be commuted without revision, deliberately upheld the original verdict, ruling, then in accordance with the procedure for trial supervision and re trial brought unnecessary trouble, with the objective of criminal procedure, to improve the efficiency and quality of trial.

  Three.Entrusts with the criminal victim's right of appeal in the case of public prosecution.Direct victims of criminal victims is a crime, directly bear is criminal behavior causes personal injury, property damage and mental damage, treatment results and the case with a stake. Criminal procedure law also stipulates the eighty-second victim is a party, litigation status in the criminal procedure should have the independent. The provisions of article 182nd the judgment only for the right to protest, not an independent right of appeal. This provision makes the victim lose with the defendant equal legal status and the opportunity to compete against the requirements, balance of power, can not fully protect the legitimate rights and interests of victims. Of course, the same as the procuratorial organs prosecution has the right to protest, to represent the interests of victims in a certain extent, make up for the lack of this provision. However, public prosecution is out of the common to safeguard the national, collective and the interests of the three, this is the prosecution to the court filed a protest of the premise, not subject to the will of the victim or so. From Langfang City criminal cases: 208 cases were received in 2007, in protest for 6; 2008 114 pieces, 3 pieces of protest. The protest was respectively 0.29% and 0.26%. Visible, such a low rate of protest is very difficult to explain the rights of victims has been fully maintained, the defendant's crime to be punished. So, in the appeal not infliction security defendant in the free exercise of the appeal at the same time, when the procuratorial organs because of the damage is not serious or other reason not to protest but fails to exercise the right to protest, to give the victim the independent appeal right is to safeguard its own legitimate rights and interests of the defendant appeal without limit, the most effective means of relief principle based on the abuse of right of appeal.

   Four. The people's Procuratorate or private prosecution for the human rights of the accused protest or appeal, appeal not infliction principle shall apply."Criminal Procedure Law" stipulates that the 190th "people's Court of second instance trial the defendant or his legal representative, counsel, close relatives of the appeal case, shall not increase the criminal punishment on the defendant. The people's Procuratorate or the private prosecutor appeal, not subject to the provisions of the preceding paragraph." Should be based on the supplementary provisions: "for people's Procuratorate prosecution, human interest of the accused and the protest or appeal, appeal people the court shall not increase the criminal punishment on the defendant", which makes the appeal not infliction principle in the legislation is more precise, complete, can also guide the people's Procuratorate and the private prosecution for the interests of the accused brought protest or appeal, which can reflect the people's Procuratorate objective on behalf of the state prosecution justice, also help to ease the contradiction of the victim and the defendant. The people's Procuratorate is the legal supervision organs in China, including the supervision of the implementation of the court of criminal trial, the responsibilities and tasks in addition to accuse the defendant criminal behavior, should also include the maintenance of the legitimate rights of the defendant. The people's Procuratorate is the defendant adverse protest, but not to the exclusion of the protest may be in order to safeguard the interests of the accused. So you must distinguish the circumstances make different legal provisions, not mechanically that as long as the procuratorate is not applicable to appeal not infliction. Therefore, the people's Procuratorate for instance court reduced the defendant criminal cases, two trial will not increase the criminal punishment on the defendant. For the interests of the accused for the procuratorial organs mentions counterappeal appeal not infliction principle, is also the world criminal law practice. In the case of private prosecution, the prosecutor is intended to punish the defendant, but some private prosecutor various considerations do not want to punish the defendant, may be appealed to the interest of the accused the mitigation of the punishment. This private interests for the defendant to appeal, of course, should not become inapplicable appeal not infliction and aggravating the punishment on the basis of. The people's Procuratorate prosecution, human interest of the accused and the protest or appeal, simply not subject to appeal not infliction restrictions and aggravating the punishment, is actually the aggravated punishment without aggravating lawsuit cases, is to misunderstand the appeal not infliction principles, but also to the people's Procuratorate protest and appeal does not respect the private prosecutor.

In summary, our current appeal not infliction system only one-sided emphasis on the protection of the defendant's rights, basic principles and ignore the criminal procedure and the fundamental task, inevitably lead to some contradictions and problems. To modify and improve on the principle, the appeal not infliction complement each other with the corresponding restrictive provisions, constitute the whole content appeal not infliction principle. So as to effectively prevent the abuse of right of appeal, in order to save the cost of litigation, improve the efficiency and quality of trial. At the same time, the criminal trial realize the legality and principle of suiting punishment to crime, the criminal defendant penalty according to the crime, to achieve the purpose of criminal proceedings, judicial justice.