自诉转公诉的基础规范和判断标准——以国家追诉利益为切入点

Basic Norms and Evaluative Standard for the Transition from Private Prosecution to Public Prosecution-an Analysis Based on the State’s Prosecuting Interest in Criminal Justice

自诉制度主要旨在防范国家滥权不追诉,是对国家追诉的限制,而非排斥。在自诉程序中,检察机关认为案件情势符合一定标准的,可以接管自诉、转为公诉程序。2020年“杭州诽谤案”程序转换所依据的“严重危害社会秩序和国家利益”条款存在标准界定不清、缺乏价值制约等问题。我国应在刑事追诉阶段确立国家追诉利益的标准,彰显其限制国家追诉、保障基本权利的价值取向,并为阻却告诉乃论、自诉转公诉、不起诉等制度提供融贯性、体系性的规范准据。国家追诉利益的考量因素包括内部因素和外部因素,前者侧重关注罪责和犯罪预防的必要性,后者将刑事法嵌入广阔的社会治理中,适度追求国家主权、民族宗教、公共秩序、国家形象等其他公共目标。国家追诉利益标准的适用是一个“不对称状态下的再权衡”过程,检察机关应当围绕考量因素和个案情形,综合评估并充分论证自诉转公诉的必要性。

An analysis from the perspectives of normative doctrine,protection of legal interest,practical needs,and legal dogmatics shows that the private prosecution system mainly aims at preventing the abuse of non-prosecution by the state,working as a restriction rather than an exclusion of public prosecution.The non-exclusive and non-supplementary relationship between private and public prosecutions can not only meet the requirement of prosecuting crimes but also provide reasonable dogmatical interpretations for relevant theories and normative rules.Clarifying the relationship between private prosecution and public prosecution can lay a normative foundation for the transition from private prosecution to public prosecution.A procuratorial organ can take over a private prosecution and turn it into a public prosecution if the circumstance of the case meets certain standards.In the“Hangzhou Defamation Case”prosecuted in 2020,the provision of“seriously endangering social order and national interest”,relied on by the prosecution in turning private prosecution into public prosecution,has such problems as vague standards,absence of value restraint and lack of procedural transparency.Therefore,China should establish the standard of the state’s prosecuting interest,which,as the concrete embodiment of public interest at the stage of criminal prosecution,has such values as restricting non-prosecution,safeguarding basic rights,providing a set of coherent and systematic norms for implementing the systems of prosecution-upon-claim,transforming private prosecution into public prosecution,and making non-prosecution decisions,and promoting theoretical dialogues among criminal justice,constitutional law,other branches of law,and other disciplines(such as economics and political science).Factors for evaluating the state’s prosecuting interest include internal and external ones.Internal factors focus on the culpability and necessity of crime prevention,and external factors embed criminal justice into the larger structure of social governance.Establishing the criteria of the state’s prosecuting interest are necessary for making detailed rules for turning private prosecutions into public prosecutions.The application of the standard of the state’s prosecuting interest is a process of“re-weighting under asymmetric situations”,requiring procuratorial organs to consider various considerations and individual cases holistically and demonstrate the necessity of turning private prosecution into public prosecution.The process of re-weighting should meet three requirements:firstly,the state’s prosecuting interest must be holistically evaluated in light of the purposes of punishment;secondly,elements of a crime and factors relating to the state’s prosecuting interest cannot be repeatedly evaluated;and thirdly,caution must be exercised towards the role of statistics in assessing the culpability and necessity of prevention in individual cases.