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刑事二审发回重审制度是二审法院审理上诉、抗诉案件后,认为原判存在实体或程序错误,需将案件发回原审法院重新审判的制度。其实质为二审法院对原判之否定,其效力是让案件重新回到一审诉讼之初状态,其目的在于加强二审法院对一审法院的监督,确保一审法院更加审慎准确认定案件,切实维护司法运行的实体公正和程序正义。但因现行刑事二审发回重审标准不够明晰、配套制度建设尚待完善,致使该制度在实践层面出现救济功能异化问题,并引起学界对该制度设置科学性、
The system of sending back and retrial of criminal second instance is the system that the court of second instance hearing the appeal and protesting case considers that there is an entity or procedural error in the original judgment and the case should be sent back to the court of trial in the first instance. Its essence is that the court of second instance denies the original judgment and its effect is to return the case to the very beginning of the first instance litigation. Its purpose is to strengthen the supervision of the court of second instance to the court of first instance, to ensure that the court of first instance cautiously and accurately identify the case and effectively safeguard the judicial operation The substantive justice and procedural justice. However, due to the fact that the current retrial standard of criminal trial is not clear enough and the construction of supporting system is still to be perfected, this system causes the problem of alienation of relief function at the practical level and causes the academic circles to set up a scientific,