A Study on the Implementation Status of the Right of Relief in Redressing Criminal MisjudgedCases： Based on the 23 Sample Redressed in the New Round of Judiciary Reform
Abstract：Redressing criminal misjudged cases with high frequency in recent years is being deemed as ″the first key word″ in the new round of judiciary reform. There were 23 criminal misjudged cases being redressed between 2013 and 2014， which provide rich examples for investigation into the implementation status with regard to the right of relief of aggrieved parties. Redressing and state compensation， the two main aspects of relief， correspond rightly to the dual structure of the right of relief， right of complaint and charge and the right to state compensation， which are respectively provided in Article 41 （1） and Article 41 （3） of theConstitution of PRC （CRPC）． From the perspective of the right of complaint and charge， the appearance of dependence on contingent factors has changed a little， however， some problems still exist as follows:（1） Long time consuming of redressing. According to statistic data， redressing of the 23 criminal misjudged cases averagely cost 10 .4 years， which means the defendant who were pronounced guilty by mistake have to suffer captivity for a virtually long time， which consists quite a part of his/her life. The reasons of this problem is complex. As for reasons in the facts， first of all， intervene from the former case-handling organs and staff who were in charge of criminal misjudged cases brings great troubles to the courts during the period of redressing. Meanwhile， the unreasonable pressures of maintaining stability and pressures from public opinions are other important adverse influences. As for reasons in the laws， some relative norms provided in Criminal Procedural Law are too abstract to ensure the right of complaint and charge．（2） Lack of motivation of courts， procurators in charge to correct the misjudged cases. Statistical data from the 23 criminal misjudged cases show that other external turning points of redressing the criminal misjudged cases reach up to 53%， which exceed the courts and the procurators portion clearly. It is not difficult to draw a conclusion that the involved court and procurators lack motivation to redress the criminal misjudged cases at hand. For this， the unreasonable misjudgments accountability system is an important reason. （3） The decisive effect of accidental factors to redress the misjudged cases. As statistical data show， redressing turning points were always related to some accidental factors. However， the criminal misjudged cases redressed in the new round of judicial reform are less dependent on accidental factors compared with the cases before， and it gives expression to the following two phenomenal signs: firstly， the redressing turning point such as ″emergence of true murder″ or ″returning of the dead″ is less prevalent than before; secondly， the factor of ″the misjudged offender still alive″ as an indispensability requirement has been changed. In criminal practice before， it was nearly impossible to redress the misjudged case once the misjudged offender had been executed. However， exception of this phenomenon appeared in these years， e.g.， in the famous misjudged ″Hu Ge Ji Le Tu Case.″（4） The dual crisis of res judicata and trail obstacles. It took 108 times in all to open court sessions during the redressing of the 23 criminal misjudged cases， averaging 4 .6 times per case. Taking the factor that it took an average of 10 .4 years to redress the 23 samples into consideration， it was every 2 .3 years that judicial branches opened a court session. Comparing the two figures， we reach the conclusion that the redressing course experience both too many times of trials and the low efficiency of trials， which means that the related dual crisis of res judicata and trail obstacles still exists. From the perspective of right to state compensation， the problems cant be ignored:（1） Durations of wrongly convicted persons to gain state compensation varied， most of which took a considerably long time. It took an average of 3 .6 years of wrongly convicted persons to gain state compensation， which exceeded the duration of 2 months stipulated by law by 80%， and in 16 criminal misjudged cases with duration data of state compensation， there are 7 cases （accounting for 44%） that exceeded the legal time limit drastically. The practical reasons hindering state compensation consist not only of immanent factors of the guarantee of sufficient financial fund， but also related external reasons from the involved organs and persons．（2） The great gaps between the claimed amount and the actual amount of state compensation. In the 13 samples with 2 kinds of related amount， only 5 cases could reach 30%. The reasons for the wide gaps could be listed as follows: firstly， the different orientation and understanding of scope and of standards of the state compensation. Secondly， the different orientation of mental damage compensation reduced the actual amount of claimed amount. Thirdly， according to Article 23 of State Compensation Law， the decision of criminal compensation is made by the organs under compensatory obligations， which obviously has negative effects on the adequate compensations the applicants could get．（3） Low proportion of mental damage compensation of the total compensation. The proportion of the actual mental damage compensation in the total compensation is as low as an average of 22 .7%. Regional factors have great influence on， even decide， the mental compensation proportion． From the analysis above， it's obvious that obstacles in running and starting criminal trial supervision procedure is most important not only for the crux problems mentioned above， but also for the indication of its improvement we could see in some of the 23 cases. Therefore， we can draw a conclusion that to ensure the realization of the right of relief with dual structure adequately in criminal misjudged cases， the critical point is the institutional safeguard function of the rights， i.e. a trial-centered redressing system．
郑磊 陈对. 冤错案平反中的救济权实现状况分析——以新一轮司法改革中23起冤错案为样本[J]. 浙江大学学报(人文社会科学版), 2016, 2(6): 45-.
Zheng Lei Chen Dui. A Study on the Implementation Status of the Right of Relief in Redressing Criminal MisjudgedCases： Based on the 23 Sample Redressed in the New Round of Judiciary Reform. JOURNAL OF ZHEJIANG UNIVERSITY, 2016, 2(6): 45-.
