刑事程序性上诉的若干问题研究

On Several Issues concerning Criminal Procedural Appeal

程序性上诉是一种重要的程序制裁与救济机制,主要包括程序性上诉的模式、程序性上诉的提起、程序性上诉的审理程序、程序性上诉的裁判方式等方面的内容。程序性上诉有三种模式,其中二审实行事实与法律审之事后审、三审实行法律审之事后审是较为普遍采用的模式;程序性上诉提起的基本要求是必须明确上诉理由,但该要求需与辩护制度衔接起来,否则会变相地剥夺当事人的上诉权;程序性上诉审以上诉理由为审判对象,以庭审笔录为调查基础,以开庭审理为原则;发回重审是主要的程序性裁判方式,但只有严重影响程序公正和实体公正的程序错误,才会导致发回重审。

Procedural appeal, as an important procedural sanction and remedy mechanism, mainly includes the appeal mode, instituting an appeal, the hearing procedure, the mode of judgment, ect.. There are three kinds of appeal modes, among them; the comparatively common way is implementing the trial？ de novo of fact trail and the trail of law in the second trial, and implementing the trial de novo of the trial of law in the third trial. The basic requirement of procedural appeal is the grounds of appeal must be clarified. However, such requirement must be in coordination with the system of advocacy, otherwise the right of appeal enjoyed by a party will be deprived. In terms of procedural appeal, the object of adjudication is the grounds of appeal, the base of investigation is the trial record, and the principle to be adhered to is trial in court. Remand for retrial is the dominating method of procedural judgment, but it will only be used when serious errors occur.