论数字技术与诉讼规则的互动关系——以我国刑事在线诉讼为视角

The Interaction between Digital Technology and Litigation Rules:From the Perspective of Online Criminal Litigation

当前,刑事在线诉讼规则滞后于数字技术的发展,导致程序漏洞与理论缺陷日益明显,不仅难以有效维持在线诉讼运作的规范性、稳定性,而且使得刑事在线诉讼“技术赋能”的程度远低于民事在线诉讼。在技术超越规则、规则落后于技术的关系之下,尽管技术的表象发生了变化,刑事在线诉讼却没有改善被告人的处境与地位,反而受到技术的“攻陷”而恶化了本就失衡的控辩关系,被告人的权利保障可能面临着更多的困难。对于刑事在线诉讼工具价值的夸大,加剧了在线诉讼仅是手段而非目的之倾向,人作为技术中的主体恐将陷入被支配的危机。数字技术与诉讼规则之间疏离甚至矛盾的关系,不仅对司法实践产生了各种负面效应,而且背离了技术发展的初衷。应当以两者的深度融合为目标,始终坚持人在技术进步中的主体地位,发挥刑事在线诉讼“技术赋权”独立的塑形力量;在技术变动的语境之下,回归刑事诉讼的正当程序本质,寻求刑事诉讼理论的理性转型;主动强化对被告人的前瞻性保护,基于“民刑分治”的思路,构建真正依托数字技术拓展的刑事在线诉讼规则。

At present,online criminal litigation rules lag behind the development of digital technology,which leads to increasingly obvious procedural loopholes and theoretical defects,not only making it difficult to effectively maintain the standardization and stability of online litigation operation,but also making the degree of"technology empowerment"in online criminal litigation much lower than that in online civil litigation.Under the asynchronous relationship that technology develops ahead of rules and rules lag behind technology,although the appearance of technology has changed,online criminal litigation has not improved the situation and status of defendants,but deteriorated the existing unbalance in the prosecution-defense relationship due to the"attack"by the technology,probably bringing more difficulties to the protection of defendants'rights.The exaggeration of the value of online criminal litigation as a tool has exacerbated the tendency of online litigation to be only a means rather than a purpose and human beings as subjects in technology are probably involved in the crisis of being dominated.The estrangement and even tension between digital technology and procedural rules not only has various negative effects on judicial practice,but also deviates from the original intention of technological development.It is imperative to take deep integration of digital technology and procedural rules as the goal,always adhere to the status of human beings as subjects in technological progress,and give full play to the independent shaping power of"technology empowerment"in online criminal litigation;it is necessary to return to the essence of due process in the criminal proceedings and seek a rational transformation of the criminal procedure theory in the context of technological changes;it is advisable to strengthen prospective protection for defendants,and based on the idea of"different governing rules on civil and criminal proceedings",to establish rules on the online criminal procedural that are truly facilitated by digital technology.