新刑诉法二审发回重审制度的思考——以一个三次发回重审的案件为分析视角

新修订的刑诉法对发回重审制作出仅限发回一次的修改,这并不能从根本上改变以下弊端：一是有违“公正与效率”的诉讼价值取向；二是违背刑诉法的二审终审制；三是有违“疑罪从无”原则；四是程序性违法发回重审,形同虚设；五是发回重审的周期过长,不利于被告人诉讼权利的保障.解决之道需从“立法”入手,即用“法律真实”的证明标准代替“客观真实”的证明标准,制定统一的证据法典,完善追究机制.

Thinking on the Retrial System in the Second Instance in New Criminal Procedural Law——With the perspective of a case of retrial for the third time

Revision of only one retrial was made in new criminal procedural law, which could not change the following drawbacks fundamentally. First,lawsuit value orientation of justice and efficiency is violated. Second,principle that the second instance is the final instance in new criminal law is violated. Third, principle of presumption of innocence to the ease with suspicion is violated. Fourth, the rule of retrial because of the procedural illegality performs no function. Fifth, the period for the retrial case is too long, which goes a- gainst the assurance of dependant＇ s procedural rights. They could be solved by starting from legislation, which is to say replacing the proof criterion of objective reality with legal reality,legislating uniform model code of evidence and improving investigation system.