上诉不加刑原则的困境及其对策

上诉不加刑原则被称为保障被告人上诉权的基石。“上诉而加刑”现象的现实存在，破坏了上诉不加刑原则。完善上诉不加刑原则可采取如下对策：凡是只有被告人上诉而未被抗诉（或自诉人未上诉）的案件，均不得以任何形式加重刑罚；取消以“事实不清、证据不足”为由的发回重审；不得就同一事实、同一理由再次启动审判监督程序，除非结果对被告人有利。

The Predicament of the Principle of Appeal without Aggravated Penalty and Its Countermeasures

The principle of appeal without aggravated penalty is the foundation that can guarantee the defendant’s rights of appeal. However, the phenomenon that the defendants will have the aggravated penalty because of their appeal is not rarely seen. The reasons might be the flaws and conflicts in our laws and legislative explanation, together with the tendency to punish the defendants seriously in our justice notion. The damage of “the appeal with aggravated penalty” is analyzed in this essay and the thoughts as to how to better the principle of appeal without aggravated penalty are also raised. The concrete thoughts are as the following: the penalty cannot be aggravated in any forms in those cases in which the defendant appeals without meeting any counter-appeal (or the private prosecutor does not appeal); that “the fact is not clear and the evident is not sufficient ” should not be used as the excuses to send back such cases for retrial; the supervising procedure of justice should not be restarted with the same fact and reason unless it is beneficial to the defendant.