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Introduction

From 17 May 2018 to 21 February 2025, the judicial process of Cheng Moumou's case has gone through four first-instance trials and three remand trials, forming a ‘judicial marathon’ that has lasted for seven years. This case not only exposed the inefficiency of individual trials, but also reflected the systemic dilemma of ‘judicial vacillation’ in China's criminal procedure. After the revision of the Criminal Procedure Law in 2018 and the updating of the judicial interpretation in 2021, such phenomenon has not been fundamentally improved. By analysing the procedural alienation of Cheng Moumou's case, this article explores how to crack the problem of judicial idling through institutional innovation.

I. Typical Sample of Judicial Vacancy: The Procedural Dilemma of Cheng Moumou's Case

(I) Timeline combing

May 17, 2018: criminally detained on suspicion of committing a crime.

December 30, 2020: the Congtai District Court sentenced to 3 years and 6 months of imprisonment at first instance.

June 11, 2021: Handan Intermediate Court remanded for retrial on the grounds of ‘unclear facts and insufficient evidence’.

11 March 2022: Congtai District Court continued to sentence Cheng to three years and six months' imprisonment.

31 August 2022: Handan Intermediate Court remanded for retrial on the grounds of procedural irregularities.

11 September 2023: the Congtai District Court sentenced Cheng for a third time to three years and six months' imprisonment.

19 August 2024: remanded for a third time by the Handan Intermediate Court.

3 June 2025: Congtai District Court found Cheng guilty but exempted from criminal punishment.

9 June 2025: Cheng filed a fourth appeal.

As of press time this case is still in litigation.

(ii) Core features of procedural alienation

1. the circularity of remand: the same court handed down the same judgement three times, and the Central Court remanded it three times on the grounds of ‘unclear facts’ and ‘procedural irregularities’, resulting in a meaningless flow of ‘Basic Court-Central Court-Basic Court’.

2. Disorderly duration of the trial: the period of time spanning seven years from the time of criminal detention to the time when the trial was not finalised was a serious violation of the time limit for the trial of ordinary cases set out in article 208 of the Criminal Procedure Law.

3. Ambiguity of adjudication standards: the core disputes in the case (e.g., the completeness of the chain of evidence and the criteria for the application of the law) were never substantively resolved, leading to repeated initiation of proceedings.

II. Institutional Causes of Judicial Vacancy

(i) Structural deficiencies in the current remand system

1. Generalisation of the grounds for remand: Article 238 of the Interpretation of the Criminal Procedure Law of 2021 still takes ‘unclear facts and insufficient evidence’ as the main basis for remand, but fails to set out any specific criteria for review, leading to excessive discretion on the part of the higher courts.

2. Lack of procedural regulation after remand: the current law does not limit the number of remands, nor does it establish a mandatory mechanism for correcting errors after remand, resulting in a vicious circle of ‘remand - maintenance - remand’.

(ii) Administrative tendency of local judicial power

1. local courts are subject to the local government: the Congtai District Court made the same judgement three times but was repeatedly remanded by the Central Court, which may imply the protection of local interests or administrative intervention.

2. The distorting effect of performance appraisal: the rate of remand is used as one of the court's appraisal indicators, prompting the higher courts to favour remand over direct revision of judgements and exacerbating procedural vacillation.

(iii) Failure of litigation efficiency guarantee mechanisms

Trial limit supervision is a mere formality: despite the fact that the Criminal Procedure Law provides for clear trial deadlines, there is a lack of substantive accountability mechanisms for overdue trials.

III. Comparative law perspective of the system of mirrors

(i) Germany's ‘leapfrog appeal’ system

Article 302 of the German Criminal Procedure Code provides that the defendant may appeal directly to the Federal Supreme Court, bypassing the intermediate courts, with the aim of reducing procedural layers and preventing local protectionism. This system enhances efficiency by compressing trial levels, and is worthy of our reference.

(ii) Japan's Designated Jurisdiction System

Article 248 of Japan's Rules of Criminal Procedure allows the Supreme Court to designate other local courts to have jurisdiction over a case under certain circumstances, effectively avoiding biased hearings by the trial court for various reasons.

(iii) The ‘triple review’ mechanism in the United States

The U.S. federal court system, through strict appellate review standards (e.g., the ‘plain error’ principle), raises the threshold for remand to substantive legal errors, significantly reducing procedural repetition.

Fourth, the path of system reconstruction to crack judicial vacillation

(I) Establishing the rule of limiting the number of remanded trials

It is recommended that the Criminal Procedure Law to add provisions: ‘the court of second instance shall not be remanded for retrial more than two times, the third remand shall be directly assigned jurisdiction’. The case of Cheng Moumou has been remanded three times, which meets the conditions for initiating the designation of jurisdiction.

(ii) Improving the procedure for jurisdictional objections

1. granting the defendant the right to object to jurisdiction: making it clear that the defendant may apply to the court for a change of jurisdiction after receiving the remand ruling.

2. establishing a mandatory mechanism for change of jurisdiction: for cases that have been remanded for retrial more than twice, the provincial court shall designate a court that has no affiliation with the place of original trial to hear the case.

(iii) Optimising the performance appraisal system

Replacing the ‘rate of remand’ with the ‘rate of conviction’ as the core assessment indicator, encouraging courts to pursue substantive justice rather than procedural repetition. At the same time, an accountability mechanism for overdue trials has been established, and judicial inspection procedures have been initiated for long-outstanding cases.

(iv) Promoting Reforms to De-Administer Judicial Power

Implementing provincial-level management of court personnel and property, and divesting local administrative organs of undue interference in judicial trials. Explore the establishment of cross-administrative courts specialising in major cases that are susceptible to local factors.

V. Conclusion

Cheng Moumou case unresolved for seven years of judicial predicament, is essentially a product of the criminal procedure alienated into a ‘power game tool’. Criminal Procedure Law since 1 January 1980, as of 10 June 2025 has been implemented for 45 years and 5 months. 2023 September was included in the 14th National People's Congress legislative planning, the fourth revision has been launched.

Cheng is an individual case, but highly informative. The new era urgently need to respond to the proposition of procedural justice through legislation. The ‘two remand that is designated jurisdiction’ into the framework of the amendment, not only can provide a solution for individual cases, but also for the construction of ‘accurate, efficient and fair’ criminal procedure to contribute to the wisdom of the system.

The only way to let justice return to the essential function of ‘stopping the dispute’, in order to avoid more similar cases into the quagmire of ‘procedural idleness’, in order to eliminate the occurrence of more Cheng Moumou case, after all, life can be a few 7 years it.

Special declaration:

This article by JAVY law firm lawyers original, only on behalf of the author's own views, shall not be regarded as JAVY law firm or its lawyers issued formal legal advice or recommendations. If you need to reproduce or quote any of the content of this article, please specify the source.