论刑事发回重审制度——评刑事诉讼法修正案草案第八十三条

刑事诉讼法修正案草案对二审中的发回重审仅仅提到了一点,即限制因事实不清证据不足而发回重审的次数。这种蜻蜓点水式的修改依然不能令人满意,而且存在着理解上的歧义。对比草案前后关于发回重审的不同规定,并结合草案和现行刑诉法中发回重审的规定。分析发回重审存在的矛盾,最后借刑诉法修改之际提出了关于二审中发回重审的修改意见。

Research on the criminal retrial system

In the secondary trial of Chinese criminal procedure, the remanding a case to the original court for retrial is always a debatable subject. Some hold to abolish it, some sing its praise, and others hold to improve it. The new draft mentions a little about remand for retrial in the secondary trial of the criminal procedure. That is to limit the number of times of remand for retrial. But the limited regulation isnot satisfactory and it has ambiguity in undstanding. The article compares and analyses the different regulations about remand for retrial between the draft and the criminal procedure, and analyses contradiction of remand for retrial by combining the draft with the criminal procedure. The articke advances my updated suggestion and hopes the new criminal procedure has scientific clear reasonable regulations about the remanding a case to the original court for retrial in the secondary trial of criminal procedure to let justice realize in a visible way.