定罪概念及原则的刑事一体化思考

The Unification of Conviction Concept and Conviction Principle

从刑事一体化的视角将定罪作为动态的司法活动来考察 ,定罪是指国家专门机关依法定程序与证据 ,根据刑法 ,确定犯罪嫌疑人、被告人的行为是否符合刑法规定的犯罪构成的活动。定罪的主体是国家专门机关 ;定罪的对象是犯罪嫌疑人、被告人的行为 ;定罪的根据包括事实根据及法律根据 ;定罪的内容与目标是确定犯罪嫌疑人、被告人的行为是否符合刑法规定的犯罪构成 ;定罪既是司法人员的主观认识过程 ,又充满了法律价值的权衡与选择。定罪的原则包括程序法原则与实体法原则两大组成部分 ,定罪的程序法原则为程序法定原则、证据裁判原则、无罪推定原则 ;定罪的实体法原则包括罪之法定原则、主客观相统一原则、必要性原则。

From the view point of criminal unification, conviction is referred to as a kind of dynamic judicial process, and it means the process in which state organization convicts if suspects and defendants' conducts fit the crime constitution provided in criminal law according to legal proceeding, evidence and criminal law. The subject of conviction is state organization; the object of conviction is suspects and defendants' conducts; the foundation of conviction includes factual one and legal one; the contents and target of conviction is to convict if suspects and defendants' conducts are accord with crime constitution regulated in criminal law; conviction not only is the subjective knowing process, but also contains the weighting and choosing for the value of law. The principles of conviction include both of the principles of procedural law and of the principles of substantial law, the former involves principle of procedure according to laws, principle of evidence judging, principle of innocence presumption; the latter involves principle of conviction according to laws, principle of correspondence between subjectivity and objectivity, principle of necessity.