司法政策变迁中的刑事司法

Criminal Justice in the Change of Judicial Policy

司法政策的样态决定刑事司法和刑事法治的样态。伴随着"严打"到"两个效果"再到近期可欲的"社会公信"这一司法政策变迁,改革开放以来中国社会发展的阶段性决定了中国刑事司法政策的阶段性,而后者又决定了中国刑事司法与刑事法治的阶段性,并说明中国的刑事法治建设不可能一蹴而就,且无法偏离从形式法治与实质法治"双失"到实质法治对形式法治的"贬损",再到形式法治与实质法治的"渐趋结合"这样一个"三部曲式"的发展轨迹。迎合刑事司法和刑事法治的公众认同,"社会公信"政策将从以往的效果型司法政策之中"涅槃"为引导中国未来刑事司法和刑事法治的新政策,且将赋予刑事司法和刑事法治以形式法治与实质法治的"结构性黏合",并将体现为相关刑事司法制度的切实安排。

The pattern of judicial policy determines the shape of criminal justice and rule of criminal law. The change of judicial policy from 'severely cracking down on criminal activities' to achieving 'two effects'(i.e. judicial and social effects) and to enhancing 'social public credibility' shows that since reform and opening-up China's social development has determined its judicial policy, which requires the country to select the type of criminal justice and rule of criminal law in agreement with its actual conditions. All this indicates that the development of China's rule of criminal law is a long-term cause which can never be accomplished at one stroke. To be more specific, it will inevitably go along the three-step path from the zerosum competition between formal legality and substantive legality; to the achievement of substantive legality at the expense of formal legality; and to the convergence of formal legality and substantive legality. In order to enhance the public acceptance of criminal justice and legality, the policy aiming at 'social public credibility', evolving from the previous policy intended to achieve positive social and judicial effects, is to become the policy leading China's future criminal justice and rule of criminal law. With this policy, the criminal justice and rule of criminal law will witness a structural integration between formal legality and substantive legality and be realized as corresponding effective institutional arrangements in the field of criminal justice.