Abstract

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Title:: The Rule of “Initiation Detrimental to the Defendant's Interest” in Criminal Retrial in China

Keywords:: stability of the law; criminal retrial; res judicata; detrimental to the interests of the defendant; reason for trial initiation

Abstract:: China's criminal retrial procedure has consistently adhered to the principle of “correcting any mistakes” in judgments that have already taken legal effect, without distinguishing whether the reasons for retrial initiation are “detrimental to the defendant's interest” or “not detrimental to the defendant's interest”. The entities initiating criminal retrials, the reasons for initiation, and the operational norms all function to achieve the purpose of correcting errors. To maintain the stability and authority of the law, it is necessary to return to the theory of the object of criminal procedure, establish the value of the facts of the case and their legal evaluation in the operation of the criminal justice process, consolidate the content of the object of criminal retrial, and delineate the scope of the binding effect of effective judgments. To prohibit courts and procuratorates from initiating retrial procedures “detrimental to the defendant's interest”, the principles of “no complaint, no response”, “the integration of prosecution and trial”, and “Non bis in idem” should be substantively established in the General Provisions of the Criminal Procedure Law. Formally, the reasons for initiating criminal retrial “detrimental to the interests of the defendant” should be clearly defined.