不被强迫自证其罪权主体范围的扩展——单位不被强迫自证其罪权研究

Expansion of the subject scope of the Privilege against self-incrimination——Research on the Privilege of units against self-incrimination

“不得强迫任何人证实自己有罪”已于2012年正式纳入我国《刑事诉讼法》,标志着不被强迫自证其罪权在我国立法中得以确立。但法律并未明确规定该条款是否适用于涉案企业等单位主体,通过法律解释的方法将该权益的主体扩展到单位也无实质意义。在企业合规改革逐渐深化的当下,加强对涉案企业刑事追责过程中相关诉讼权益的保护,与以企业为代表的单位的诉权保护立法简陋的矛盾日益凸显。通过立法的方式,将单位明确规定为不被强迫自证其罪权的主体,并辅以配套保障制度,已成为完善单位犯罪立法、保护涉案企业正当法律权益的必然选择。虽然,单位因为不具备自然人的耻感,对其不被强迫自证其罪权进行保护的紧迫性较自然人弱些。但单位不被强迫自证其罪权作为一种道德权利,在我国当前社会事实下仍有其正当性基础。我国应秉持制度功利主义权利观,通过立法明确赋予单位不被强迫自证其罪权。

The procedural concept of"no one shall be forced to prove his guilt"was formally included in Chinese Criminal Procedure Law,marking the establishment of the privilege against self-incrimination in legislation.However,the law does not clearly stipulate whether this article is applicable to units such as the corporations involved in the case,and it has no substantive significance to grant such privilege to corporations through the method of expanding interpretation.Under the social factual demand of protecting corporations to boost the economy,the contradiction between strengthening the protection of relevant litigation rights and interests in the process of criminal accountability of corporations involved in the case and the simple legislation on the protection of unit crime litigation rights has become increasingly prominent.Through legislation,clearly defining the unit as the subject of the privilege against self-incrimination,supplemented by a supporting guarantee system,has become an inevitable choice to improve the legislation of unit crimes and protect the legitimate legal rights and interests of the corporations involved in the case.Although,the unit does not have the sense of shame like person,the urgency to protect its privilege against self-incrimination is weaker than that of a person.However,as a moral right,the unit’s privilege against self-incrimination,which still has its basis of legitimacy under the current social facts in China.China should uphold Institutional utilitarianism,and explicitly endow units with the privilege against self-incrimination through legislation.