略论死刑复核中“发回”案件的重新审判

在重新审判“发回”重审死刑案件的司法实践中,对被告人容易产生有罪推定的倾向、依据补强证据再次适用死刑的倾向和漠视侦控行为合法性的倾向,为此重审法院应杜绝片面依据侦控机关提供的不利于被告人的存疑补强证据,对被告人再次适用死刑;对“事实不清、证据不足型”发回重审的死刑案件,如果经过重审认定的案件事实没有发生重大变化,一般也不宜对被告人再次适用死刑。

On the Re - trial of the Referring Back Cases in Death Sentence Review

In the judicial practice of rehearing a referring back case to review its death sentence,for the accused there’s likely to be the trend of presumption of guilt,the trend of re-applying death sentence according to corroborative evidence and the trend of ignoring the legality of investigation and control.Therefore,the re-trial court should prohibit re-applying death sentence to the accused only according to the doubtful corroborative evidence provided by investigative departments.For the death sentence case which is the type with vague fact and inadequate evidence and is referred back to review,if the fact has no big change after being identified,generally it is not proper to re-apply death sentence to the accused.