摘要(Abstract)：
On December 2,2016,the Second Circuit Court of the Supreme People’s Court proclaimed the judgment of the Nie Shubin case for intentional homicide and rape in public,revoking the conviction judgment of the defendant Nie Shubin rendered by the Intermediate People’s Court of Shi Jiazhuang City in Hebei Province in 1994 and the High People’s Court of Hebei Province in 1995 and acquitted Nie Shubin.So far,this momentous,difficult and complicated case,which occurred,tried and implemented more
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作者(Author): 胡云腾;赖早兴;Li Jiesi;
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参考文献(References)：
- 1 Some scholars believe that the retrial of the Nie Shubin case by the Supreme People’s Court reflects values of evidentiary and the agent,which showed dedicated pursue for judicial justice.Du Taoxin&Zhou Di,Nie Shubin Case Is Supposed to Go Down in History,The Democracy and Law Times,December 25,2016,at 1.
- 2 The Supreme People’s Court of the People’s Republic of China,No.3 Criminal Retrial Verdict of the Supreme People’s Court of 2016.
- 3 Actually,even for the Criminal Law,the legality and rationality of article 10 in the Interpretation of the Supreme People’s Court on Several Issues concerning the Application of the Retroactivity of the Criminal Law deserve to be researched.The reason to make the interpretation is that the retrial case once adapts the principle of applying the new law with the expectation of a lesser punishment in the former law,it may cause numerous retrials.However,the premise of the retrial is that the original judgment is wrong and revoked,under the circumstance that the retrial case is the same with a new case,also in accordance with the same principle instead of the application of the law of conduct.According to article 12 of the Criminal Law,the judgment made in accordance with the former law before the implement of the new law was still effective.That is to say,the original judgment is correct according to the former law,the defendant cannot ask to retry the case in line with the amended law.Cases of which the original judgments are wrong and decided to retry according to the former law should apply the above principle.
- 4 Since the right to approve death penalty has been exclusively exercised by the Supreme People’s Court,which changes the situation that most death penalty cases in the second instance are in court trial,the Supreme People’s Court and the Supreme People’s Procuratorate jointly issued Provisions on Several Issues concerning the Trial Procedure of Death Penalty in the Second Instance,clearly making requirements that the death penalty cases in the second instance should be in court trial.Accordingly,every High People’s Court and People’s Procuratorate at the same level generally increase people and institutions.From then on,the death penalty case in the second instance is normally in court trial,exceptionally not in court trial.
- 5 During the period that the Supreme People’s Court transferred the right to approve death penalty to High People’s Court according to the law,each High People’s Court combines the procedure of approving death penalty with the second instance procedures together in reality,usually with“the verdict is also the judgment of death penalty approval”at the end of the body of written judgment and then deliver to the execution.
- 6 The No.00005 Criminal Judgment of Inner Mongolia High People’s Court of 2014.
- 7 Li Qiang,Liu Jing&Jing Long,I Want to Give a Thumb up to the Supreme People’s Court:Sidelights of the Announcement of the Retrial of the Nie Shubin Case,People’s Court Daily,December 3,2016,at 4.
- 8 “The Second Circuit Court of the Supreme People’s Court made an impartial judgment on the case through the procedure for trial supervision...namely the criminal retrial procedure,which positively promote the development of the current nomocracy”,see Wang Minyuan,Thoughts on the Nie Shubin Case after Attending the Court Trial,People’s Court Daily,December 3,2016;“The acquittal of the Nie Shubin case is of great significance,which is a milestone case in the criminal judicial history of China”.“In the process of changing the judgment of the Nie Shubin case,the explorations on each mechanism to protect the procedure justice provide beneficial experiences for judicial justice”,see Mo Hongxian,The Nomocracy Significance on the Acquittal of the Nie Shubin Case,People’s Court Daily,December 3,2016,at 3.
- 9 Hu Yunteng,Humble Opinions on the Prevention of Misjudged Cases and Judicial Accountability,13 The People’s Judicature(2014).
- (10)Misjudged cases occur due to objective reasons and subjective reasons,but the subjective reason always comes first.See Exclusive Interview on Judge Hu Yunteng:Deeply Learn Lessons of the Nie Shubin Case and Advance the Reform of Judicial System,2 China Law Review(2017).
- (11)For example,some people believe“the acquittal of Nie Shubin case in the retrial has manifested the firm determination of Chinese supreme judicial organs to rebuild judicial credibility and to correct misjudged cases,and the spirit of confronting directly to doubtful and wrong cases”,see Mo Hongxian,supra note 8;“The acquittal of Nie Shubin has shown strict and fair judicature,and also manifested judicial organs’determination and will of not covering ugly aspects,not protecting wrong cases but correcting wrong ones”,see Commuting Nie Shubin Case,Justice Is Not Absent,Legal Daily,December 3,2016,at 1.
- (12)“Redressing Nie Shubin case has become the hottest event on the internet for a week.Netizens comment that it is a scrupulous step for a nomocracy country”,see Chen Zhenkai,Comments of Netizens on the Redress of Nie Shubin Case:An Important Step for the Rule of Law,People’s Daily Overseas Edition,December 9,2016,at 9.
- (13)Zhou Qiang,The Promotion of Strict Judiciary,People’s Daily,December 14,2014,at 6.
- (14)Shen Deyong,On the Reform of Trial-centered Litigation System,3 China Legal Science(2015).
- (15)Meng Jianzhu,Voluntarily Adapt to Changes under New Circumstances,Improve Organs of Public Security,Procuratorates and the People’s Courts’Ability and Level to Serve Overall Objectives Effectively,People’s Court Daily,January 22,2015,at 1.
- (16)Fan Chongyi,Only Procedure Justice Can Realize Substantial Justice,7 Law Science Magazine(2010).
- (17)Some scholars spoke highly of it:“the principle of evidentiary adjudication is the fundamental principle of criminal procedure,and also the core principle.In the 4th Plenary Session of the 18th CPC Central Committee,when mentioning the reform of trial-centered litigation system,it required to adhere to the principle of evidentiary adjudication.But how to implement the principle of evidentiary adjudication,the Supreme People’s Court gave an explaination through the retrial of the Nie Shubin case.”See Fan Chongyi&Li Siyuan,Seeing the Innovation of the Retrial Procedure in the Criminal Procedure by the Correction of Nie Shubin Case,People’s Court Daily,January 26,2017,at 2.
- (18)Zang Desheng,Three Innovations to Establish the Modeling Status of Nie Shubin Retrial Judgment,People’s Court Daily,December 21,2016,at 2.
- (19)THE CPC POLITICAL AND LEGISLATIVE AFFAIRS COMMITTEE,SOCIALIST CONCEPT OF RULE OF LAWTEXTBOOK,at 152(China Changan Press,2009).
- (20)Liu Jing,Li Qiang&Jing Long,supra note 7.
- (21)Liu Jing,Li Qiang&Jing Long,Learning Deep Lessons from the Acquittal in Accordance with the Law:Persons in Charge of the Supreme People’s Court Answering Reporters on the Nie Shubin Case,People’s Court Daily,December 3,2016.
