刑事二审因“事实不清、证据不足”而将案件发回重审,违背“无罪推定”原则,导致诉讼职能角色的混淆,在实践中会带来“重复追诉”和超期羁押的弊端,从根本上影响了刑事二审程序的科学性、合理性。因此应当废除“事实不清、证据不足”发回重审制度,合理地改造刑事二审程序。 The second instance of criminal trial sent the case back to retrial for “unclear facts and insufficient evidence”, violating the principle of “presumption of innocence” and led to the confusion of the function of the litigation. In practice, it would bring the drawbacks of “repeated prosecution” and prolonged detention Fundamentally affected the criminal procedure of the second instance of scientific and reasonable. Therefore, it should abolish “the facts are not clear and the evidence is not sufficient” and send it back to the retrial system to reasonably transform the criminal second instance procedure.