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17Historical study &Comparative Study on Remand for Retrial in China
Xinmiao Huang
Историческое и сравнительное исследование откладывания слушания на новое рассмотрение в Китае
Синмьяо Хуан
Синмьяо Хуан /Xinmiao Huang - доктор философских наук,
Институт доказательственного права и судебной экспертизы,
Китайский университет политики и права, г. Пекин, Китай
Abstract: the retrial system, whether in civil litigation or criminal litigation, embodies its own significance. However, due to differences among basic principles, value orientation, main body and their intentions to achieve among different litigations, the retrial systems are adopted with different litigation type to reflect the various characteristics of litigation. As a judicial activity of the state, litigation is characterized by its procedure, that is, courts should strictly follow procedures and should have no any violation to it. Remand for retrial plays an important role on judicial proceedings. It can carry through the basic lawsuit system of two-tier trial system and urge people’s court of second trial to do adjudication supervision, so as to better realize procedural justice. The study on the development of remand for retrial is important to have better understanding on how the procedure should be carried on for nowadays society.
Аннотация: система пересмотра судебного дела в гражданском процессе или уголовном деле заключает в себе собственную значимость. Тем не менее, из-за различий между основными принципами, ценностной ориентацией верховного органа и стремления добиться правосудия, среди различных судебных процессов, системы пересмотра судебного дела приняты различные типы судебных процессов, чтобы отражать различные характеристики судебного разбирательства. В судебной деятельности государства судебный процесс характеризуется его процессуальными нормами, то есть суд должен строго следовать процедурам и не должен иметь нарушений. Откладывание слушания играет важную роль для судебного разбирательства. Оно может осуществлять судебный процесс двухуровневой системы судебного разбирательства и побуждать народный суд к повторному рассмотрению дела, необходимости создать Судебный надзор, чтобы лучше понять процедурную справедливость. В исследовании развития откладывания слушания на новое рассмотрение, важно иметь лучшее понимание о том, как должна проходить процедура в современном обществе.
Keywords: historical study on remand for retrial, comparative study on remand for retrial, appeal system, justice. Ключевые слова: историческое исследование откладывания слушания на новое рассмотрение,
сравнительно изучение исследование откладывания слушания на новое рассмотрение, система апелляции, правосудие.
1. Historical study on Remand for Retrial
The compiling mode of codes in ancient China refers to «combination of all laws and combining criminal law and civil law in a code». As everyone knows, procedural law is a means of realizing substantial law, while substantial law has the problem of combining criminal law and civil law in a code. Therefore, procedural law won’t have a clear segmentation, either, reflecting in: ancients might judge many civil cases as the criminal judgment. There was no single procedural law until the late Qing Dynasty modified its laws.
The legal system before the Qing Dynasty had the characteristics of «emphasizing punishment but neglecting people». Commodity economy developed rapidly in the Song Dynasty, civil activities have been increased gradually, accompanying with numerous disputes. Thus, people gradually have realized the lawsuit. With the occurrence of disputes and lawsuits, it is necessary to formulate the procedural law and it should be formulated from two aspects of entity and procedures. Obviously, remand for retrial belongs to the problem in the procedure. The objective studied in this paper refers to the development of remand for retrial in current days. It is necessary to look for reasons that causing remand for retrial in the lawsuit process of constant perfection — how to present appeal and review in Chinese history.
Civil actions have been generated as early as before the Qin and Han Dynasties. The earliest civil case could be traced back to the period of the Western Zhou Dynasty. In the Warring States Time, legalism was popular. The political reforms in various states gave priority to punishment, but neglected the civil legal relationship. In the Han Dynasty, civil actions have been redeveloped.
On the other hand, related appealing system has been established as early as in the period of Western Zhou Dynasty. At that time, it just defined deadline for appealing, but didn’t have other specific stipulations. During Qin and Han Dynasty, there was «Qiju» system (which was a rehearing system), and it stipulated that the prisoner and his families could submit appeal to require for retrial within a certain period of judgment, while whether «Qiju» put on a level, retrial organization is original judicial organ or up one level judicial apparatus, or it is the highest central level of trail isn’t explicitly stipulated.
The «suspected prison bypass the immediate leadership» in the Han Dynasty was a system for dealing with hard cases and is similar to current appealing system. «Yan» was an important processing way, when law application of
hard cases encountered with problems. It was a remedy procedure established for error judgment that has already taken effect or was going to take effect. In the Han Dynasty, situations that cause doubtful points for erroneous judgment and miscarriage of justice were quite a few. At the beginning of establishing the Han Dynasty, Han Gaozu (the Emperor of the Han Dynasty) issued an imperial edict to stipulate that unjust cases must be judged layer by layer, it was hard to make punishment fits the crime, when county-level government officials heared a case, including different propositions for county-level government officials to participate in proposals, which all can be reported to the county class for determination. County-class executives should tell the subordinate government officials to how to judge. Tingwei (an official of feudal government) and Erqianshiguan were key organizations of solving suspected prison. If Erqianshiguan still couldn’t solve it, it must report it to the central government for judgment and being taken over by Tingwei, who should reply it. If Tingwei still can’t solve it, it must be reported to the Emperor, and the Emperor owned the final jurisdiction.
The prisoner system in the Han Dynasty was a system that superior government officials took the initiative to check and examine inferior judgment and it was similar to the current retrial system. The Emperor Wu established 13 states in the whole country and set up a feudal provincial or prefectural governor to take charge of supervising prison situations of each shire county in the state. Judicial government officials would judge prisoners in prisons of the government gradually, firstly “review” and refer to written complaints. If there was unjust verdict indeed, they would correct and rehabilitate immediately. The occurrence of Yan has made contributions to figuring out particulars of offense, ensuring judicial fairness, and protecting rights of prisoners.
In the period of Wei, Jin and Southern and Northern Dynasties, the appealing system has been perfected constantly. The code of Wei definitely stipulated that if there was objection or dissatisfaction on judgment results, it should rehear and re-check. In the Sui and Tang Dynasties, Emperor Wen of Sui explicitly stipulated that appeal must be carried out step by step. The complained lawsuit can be divided into four levels from bottom to top: The first level was county level, the second one was state, government office and governor and protector general, the third level was minister, and fourth level was Sansi. When parties were dissatisfied with the results of judgment, it must apply for «ignored case» to the county and lodged an appeal to superior state, government office or governor and protector general. If they were still unsatisfied, they can hold the «ignored case» to the capital city and complained to the central minister. If they were still unsatisfied, they should hold the «ignored case» and submitted it to the lawsuit — complained to Sansi. Tang Code asked to appeal layer by layer. If the procedure were violated, it would overstep and belong to the illegality. The one would receive punishment of being beat with a stick for 40 times.
In the Song Dynasty, it had meticulous and perfect stipulations on retrial procedures, namely «overturning and retrial». First of all, it can be divided into two types: first of all, «transfer and retrial» meant that objected cases were transferred to another department to retrial. The second one refers to «judge by dispatching officials», which meant that after «transferring and retrial», the superior dispatched official judges to retrial or assigned another judicial office to retrial. The Song Dynasty protected the private rights and interests of parties, but it didn’t limit level of trial for appealing, but it limited times of objection for three times at most. Once it was exceeded, it wouldn’t have objection any more. After the Southern Song Dynasty, the limitations of objection have been broadened to 5 times. The transfer and retrial system endowed parties to have the right of objection, or even allowed to disperse the judicial rights in the way of «remote trial», made judicial office supervise mutually and reached the purpose of hearing cases fairly.
In Ming and Qing Dynasties, once civil cases implemented final judgment, and it could be executed immediately after county’s judgment. There was no specialized executing agency, but also had no specialized executing procedures. Moreover, it had no need to report or submit to superior Yanmen. However, Qing Code had special stipulations. Civil cases should have the condition that parties voluntarily declared to accept judgment of preferences and counties as the conditions of closure, namely parties didn’t accept the need of judgment and rehear. Moreover, it also stipulated the perfection of appealing system. Moreover, it can confirm accepted agency in line with degree of appealing cases. In addition, it also proposed requirements for appellees: it must list Yamen and trial plots in written complaint in details. For appealing cases, superior Yanmen also had different processing ways.
2. Development of remand for retrial in close history of China.
2.1. Development of Civil Procedure of remand for retrial.
After the establishment of New China, the Central People’s Government Commission of Legislative Affairs formulated Executing General Rules of Judicial Proceedings in the People’s Republic of China (Draft) stipulated in Article 62 that , «if the appealing court thinks that it has no reason, it should reject an appeal for the judgment. If it thinks that the appealing has reasons, it should revoke original judgment and commute by itself. Or when necessary, it must be sent to the original court or other courts to retrial». Nowadays, the stipulation really looks like fuzzy. For «when necessary», it seemed that how to identity was determined by the court, while the court also thinks that it has no need for it completely. This undoubtedly wouldn’t be beneficial to safeguard rights of appellors. In 1956, the Supreme People’s Court pointed out in Summary of Judicial Procedures for Civil Cases in Different Levels of the People’s Count that « for cases that broke the law on a serious scale for the first trail, namely judgment quashes original judgment and return to people’s court of the first trial to further review». Thus, it can see that remand for retrial in this period was suitable in the way of «judgment». In 1982, the Civil Procedure Law of the People Republic of China (Trial) issued by National People’s Congress stipulated that «if the original judgment is identified as unclear factors, insufficient evidences or might influences of impacting correct judgment by violating legal
procedures, the original judgment will be quashed and sent to the first trial of people’s court to retrial and commute after figuring out facts». This emphasizes that proper procedures will have direct influences on fair judgment and regards «commute» as the processing results of remand for retrial. Until the publication of Civil Procedure Law of the People’s Republic of China in 1991 and after the Supreme People’s Court conducted specific stipulations on Opinions on Several Problems of Using the Civil Procedure Law of the People’s Republic of China, it can say that the remand for retrial has independent status in civil procedure act of China and develops an important role on civil judicial practice.
2.2. Development of Criminal Procedure of remand for retrial.
The criminal procedure law is sometimes regarded as a seismometer7 of constitution for a state, it is also considered as one of our country’s basic laws, which ensure that our judicial organs can accurately and timely identify the facts of crime and apply the proper laws to punish the criminals and maintain social order and economic order to guarantee the smooth development of the cause of socialist modernization.
After nineteenth Century, with the capital output and colonial expansion of the western powers, the economic structure, class structure and cultural consciousness of the society have been changed greatly, and the legal system, as the superstructure of a society, has also begun to transform from the feudal to the capitalist system. In «The Draft Criminal Procedure Law of Qing Dynasty» issued in 1919, Shen Jiaben a nd others imitated the Japanese criminal procedure law issued in 1890, which, in the third article of the provisions for the «appeal» procedure and according to the verdict of a case, indicates that for the different circumstances, the yamen (government office) dealing with a trail can close a trail by dismissing the charge, alteration of judgment or remand for retrial. In Article 384, if the trial yamen believes that the accusation is reasonable, it should alter the part of the original decision to withdraw the charge before the judgment. If the jurisdiction of the first trial court is wrong or the indictment of the public prosecution is dismissed to accuse the trial yamen for its improper judgment and abolition, the trail court is able to return the case to the original trial court, however, if the first trial court has the jurisdiction for judgment, the accused trial court believes it as an improper judgment, and if the abolisher accuses that the trial court includes the first instance trail, this accused trial court is hereby is able to conduct the first trail and does not need to take retrial to the original court for judgment. Although this is referenced from Japanese criminal procedure, it should be adopted appropriately with the real situations in China1 2.
In 1928, the first «procedure law» in the history named after the litigation3 is issued. In the remand for retrial provision in the 2nd clause of Article 385, the second instance court, based on the refusal of the first trial or the cancellation caused by the wrong jurisdiction, returns the case to the first court. Today, in China, we applied the first clause of Article 225 of the Criminal Law4 in 2012 that the original judgment believes that the fact is unclear or the evidence is insufficient, it can change the original sentence after more facts are found; or it can rescind the original judgment and return to the original people’s court for retrial. However, for the criminal procedure in 2012, it is worthy of attention that if the original people’s court has made judgment to the returned case for such situation, people's court of second instance should make judgment according to the law and it is not allowed to return to the original people’s court for judgment if the accused person institutes an appeal or the people’s procurator ate institutes a complaint up against the court rulings. That is, the retrial case is only permitted for once.
For the Procedure Law in 2012 applied to the retrial case, it mentioned in Article 227 that if the people’s court of second instance finds the following violations to the laws and regulations for the trial proceedings made by the people's court of first instance, it should rescind the original judgment and return the case to the original court for rejudgment:
(1) In violation of the regulations of the laws for public trial;
(2) In violation of the challenge system;
(3) Deprivation or limitation of legal litigious right of litigant to cause impact to the fair judgment;
(4) The illegal construction of trial group;
(5) Other form of procedure to violate legal regulations and may cause fair judgment.
For criminal procedure in 1928, remand for retrial is caused by refusal of a case or the wrong jurisdiction. However, the criminal procedure in 2012 that China applied nowadays is caused by unclear criminal fact, insufficient evidence, in violation of the public trial, avoidance to the legal action of litigant, illegal trial group and in violation of the laws and regulations for litigation rights, etc. Compared with that, the criminal procedures in 1928 and 2012 mentioned that the illegal procedure can cause the remand for retrial. Thus, the fairness of the proceedings can be ensured.
Regarding to the remand for retrial, please refer to the Article 228 of the Criminal Procedure. The original people’s court should set up a new collegiate bench for the returned retrial and judge according to the procedure of first instance. For the new judgment, based on the Article 216, 217 and 218 of this law, appeal or protest to the decision is allowed. For the defendant, private prosecutor and their legal representative for the new judgment of the returned case, they are still allowed for multiple appeal or protest. For the original people’s court with the returned
1 Roxin, Criminal Law, Edition 24 in 1995, Page 9.
2 Study on the Reform of Criminal Procedure System in Modern China 1895-1928, Li Chunlei, published by Peking University Press in 2004.
3 Hereinafter referred to as «Procedure Law» in 1928.
4 Hereinafter referred to as «Procedure Law» in 2012.
case, it should set up a new collegiate bench, if no, the people's court of second instance is entitled to return the case for review for the illegal procedure.
3. Comparative study on remand for retrial.
The precondition of quashing original judgment in Taiwan is: since program error belongs to judgment, it of course violates decree and the influence on judgment; however, other program errors only lead to the evocation and return of original judgment when generating influence on it; its return is made based on whether program error has causality with result of judgment5, which is widely divergent from the recondition of remanding in mainland China. When court of second instance makes sentences or reject for changing trial, once the original is abrogated, which is the state before judgment, the crime part does not has affiliate. Thus, it shall be the more appropriate judgment; and after abrogating original judgment, the court of appeal can both verdict and reject for retrial6.
In America, there was one time that no matter how minor the mistake was, or even belongs to technical mistake, court of second would cause the evocation of guilty verdict. However, nowadays, federal system and most states have passed the statute law about victimless offense, which stipulates that the court of appeal can only abrogated guilty verdict in the circumstance that the mistakes violated defendant’s fundamental rights or affected case results in reality. For most cases, although it was found that the judgment court made mistakes, the court of appeal would affirm the mistakes were victimless with unnecessarily abrogating guilty verdict. If the court of appeal the mistake was harmful, the court would abrogated the judgment made by basic people’s court and send the case back to the people’s court of first trial. Meanwhile, the county court may have a new trial of defendant, but the retrial after abrogation of judgment is an exception opposing the universal principle of double jeopardy7.
In Germany, the purpose of appealing is to ensure that the decision of individual case is made according to applicable procedure and substantial law that is uniform to realistic law explanation. This judgment is made according to procedure only if juridical program error generates influence on conviction or sentencing. There are two conditions relate to procedural violation: one is that procedural violation belongs to the absolute grounds of appeal stipulated by law; another is procedure violation has effect on judgment. However, the procedural violation belong to absolute grounds of appeal includes hearing in camera due to insufficient reasons, court’s ultra vires of implementing jurisdiction, absence that is supposed to enter an appearance, improper judge’s participation of trial and court’s illegal decision with obviously limiting right of defense. It court of did not find legal mistakes in the procedure and judgment of trial court, it will reject an appeal; if it is necessary to quash original judgment, the case generally needs to be remanded for retrial. If the fact finding of first trial court does not have dispute and the punishment fits the crime, second instance people’s court can make last judgment without needing to remand for retrial. In addition, if prosecutor and defendant issue an appeal simultaneously, the trial on appeal must handle separately.
If party thought there was mistake during trial, it is appropriate to apply for new trial or appeal against within prescribed time; if party arrested the judgment after court of appeal making judgment, he can propose rehearing and the court of appeal will decide whether to carry out rehearing according to party’s request. During criminal procedure, the court of appeal only carries out afterwards investigation on first-instance judgment from the perspective of law; it cannot reaffirm the case fact and must respect the right of sentencing and discretion made by first trial judge in principle. After written hearing or listening to the oral arguments made by accuser and the defender, the court of appeal can maintain, abrogated or change the second-instance judgment of original judgment; it can also remand for retrial during quashing the original judgment when necessary but the evocation due to lack of evidence is in exception.
As the civil law system like Germany as well, when Japan quashing the original judgment on illegally declaring jurisdiction mistake grounds or dismiss indictment, it shall send case back to first trial people’s court with judgment; when abrogating original judgment for the case of illegal jurisdiction, it shall transfer the case to the first instance people’s court with jurisdiction. When quashing the original judgment in other reasons, it shall return the case back to first trial people’s court or transfer to other court with judgment. However, the accused trial court can sentence defendant case again according to lawsuit record, original court and the evidence investigated by accused trial court8.
The differences between Japanese and Chinese scope of remand for retrial only exist in the instance of appeal in two approaches including accuse and charge. Meanwhile, the facts on appeal and law on appeal are separated. Second is the difference of restriction for sending back and rehearing with Japan only remand for retrial when it is considered necessary. The third is different in court selection scope; Japan set multiple choices and space of «another court of first instance in the same classification and level with original judgment court» except for original court.
Except for the conditions of remanding for retrial that stipulated in other countries and mentioned above, it shall also satisfy that the procedural violation, in principle, has been raised an objection in first trial.
5 Refer to «Research on the System of Chinese Criminal Procedural Violation Remand for Retrial», Author: Yuan Jinfan.
6 «Document Assembly of Criminal Proceeding», Author: Chen Weidong, Law Press China, 2005.
7 «System Reconstruction of Criminal Second Instance «remand for retrial», Chen Dongwei, Li Fenfei.
8 Refer to «Foreign Criminal Procedur» written by Wang Yizhen, Peking University Press, 401 (1994).
Since every system has two sides and remand for retrial will generate corresponding disadvantages, which will affect the realization of efficiency value and litigant’s shaking of court authority, it is necessary to try to limit remanding for retrial.
4. Conclusion.
From the above analysis, it can be shown that the system of remand for retrial has a long history not only in China, but also in other countries. The function of this procedure is for supervise the judgment and pursue the justice. From the study on development of remand for retrial, it can be observed that there is still improving space for it in both adoption area and legislation area.
Since the fourth plenary session of the 18th CPC Central Committee, to promote the rule by law, strengthen the legal construction, and improve the judicial reform has become the era of aspiration. As mention above, the remand for retrial procedure is a process to justice. Therefore, it can be seen that the requirement for announcement of remand for retrial should be clear. Judges should announce remand for retrial with instructions. Therefore, question of what kind of instructions there should be has been raised. Of course, this is another problem, which needs to be solved, but from it, it can be concluded that remand for retrial is an important procedure of parties’ justice guarantee. By the study of development of remand for retrial and comparative study on it, more short comes can be found, so that professionals can get solutions to better the system. With the system’s development, it can become more suitable for the society and fulfill the requirement of judicial reform.
Reference
1. Study on the Reform of Criminal Procedure System in Modern China (1895-1928), Li Chunlei, published by Peking University Press in 2004.
2. Roxin, Criminal Law, Edition 24 in 1995.
3. «Foreign Criminal Procedure», Wang Yizhen, Peking University Press, 401, 1994.
4. «Document Assembly of Criminal Proceeding», Chen Weidong, Law Press China, 2005.
5. Reestablishment on Criminal Remand for Retrial, Li Fengfei, 2004.
6. Introspection and Reestablishment on Criminal Remand for Retrial of China, Shi Limei &Liu Linna, 2007.
7. Civil Remand for Retrial In administrative view, Chen Hangping, 2012.
8. Judicial costs and Judicial efficiency, Wang Yaxin, 2010.
9. Civil Remand for Retrial in China, Liu Min, 2011.
10. Control and specification of Civil Remand for Retrial, Wang Boxun &Zhao Wenchao, 2010.
11. Criticism of Civil Remand for Retrial, Wang Fuhua &Rong Tianming, 2007.
