A Study on the Nationalism Concept of the Remanding Re-trial System in Criminal Appeai Trial

Coordination of conflict of interest is the core issue of the legislation. Thesociety can have a healthy development only if benefit relations are handled properly.During the period of social transformation in China, the interests are showing a trendof diversification increasingly. The trend needs to the legislature to respond. Theamendment of the Criminal Procedure Law is important for the integration ofinterests by the legislature.With the amendment of Criminal Procedure Law, the criminal procedural systemand principles become the center of discussion in legal research once again. Thisthesis will follow the law of hot-spot discussion to study of The Remanding Re-trialSystem in Criminal Appeal Trial. For this system, the scholars mostly argued for thissystem from the following aspects in the past: the discussion of consciousness andvalue foundation, the discrimination between related systems, the comparison withsimilar overseas system, the analysis of legislative situation, problems in justicepractice, etc. In this thesis, the author will make a tentative study in a different viewfrom previous studies.As an important processing result in the criminal appeal system, the remandingre-trial system is not only conducive to achieve the purpose of punishing crimes, butalso beneficial to the protection of legitimate rights of litigant and maintainingjudicial justice. Whether the deficiency of legislature, or problems in justice practiceof the remanding re-trial system, the most fundamental reason is the existence ofnationalism concept. As long as this concept continues to exist, the remanding re-trialsystem in criminal appeal trial will be no substantial development.The thesis will be study the remanding re-trial system in criminal appeal trial onthe perspective of nationalism concept. Besides the preface, this text includes fiveparts as follows:The first part makes a basic study of the nationalism concept and the remandingre-trial system in criminal appeal trial, aims to clarify the basic concepts to pave the way for the argument below.The second part proves two aspects from the development of legislation andjustice practice the demonstration. On the one hand, this part examine the changes ofthe remanding re-trial system in the development of Criminal Procedure Law sincethe reform and opening up; on the other hand, there is a series of problems in thejustice practice. This part can draw a phase conclusion by analysis of legislativechanges and law application: the nationalism concept is the deep reason of obstacle todevelopment of the remanding re-trial system in criminal appeal trial.The third part focuses on some relevant systems of the remanding re-trialsystem in criminal appeal trial—the Way to Criminal Second Trial, the Principle ofNo Additional Punishment Resulting from Appeal and Pretrial Detention System. Asprepositional procedure and follow-up results, these systems and principle has agreat relationship with the remanding re-trial system in criminal appeal trial. In thispart, the author wants to discuss the nationalism concept in the systems and principle,in order to achieve the purpose of the existence of nationalism concept in theremanding re-trial system.The fourth part looks forward to the future of the remanding re-trial system incriminal appeal trial. This part demonstrates that the inevitability of change ofnationalism concept in the context of the establishment of the market economicsystem, harmonious society constructing and socialist country building. This partproposes that the nationalism concept will turn to the individualistic law. And theauthor puts forward some Suggestions on this basis.The conclusion part clarify the author’s point of view: the remanding re-trialsystem in criminal appeal trial will have a bright future. However, as long as thenationalism concept continues to exist, it would not have a substantial development.