大陆法系、英美法系刑事审前程序构造之比较

A Comparison of the Pre-trial Penal Procedures Structure between Continental Law System and Anglo-American Law System

大陆法系国家基于控制犯罪的考虑和“国家高于市民社会”的诉讼理念 ,奉行“职权主义”的诉讼构造 ,普遍实行侦检一体化 ,“起诉法定主义”和“卷宗移送主义”等法律制度 ;英美法系国家则遵循“市民社会先于国家”的诉讼价值观 ,践行“当事人主义”的诉讼构造 ,大多实行检警分立 ,“起诉便宜主义”和“起诉状一本主义”等法律制度。

Based on the consideration of controlling crime and the litigation notion that 'the state outweighs the civil society', countries applying continental law practice a litigious structure of 'ex officio doctrine', and most of these countries vest the powers of investigation and prosecution in the same legal body, and they will also practice such law doctrines as 'Legally Prescribed Prosecution' and 'Deportation of Files'. By contrast, countries applying Anglo-American law comply with the litigation notion that 'the civil society outweighs the state' and practice the litigious structure of 'adversary proceedings', and most of them vest the powers of prosecution and investigation in different legal bodies, and they will also carry out such law systems as 'Doctrine of Prosecuting Discretion' and 'Elusiveness of the Bill of Prosecution'. The conflict and mingling of the two major law systems disclose the feature and development tendency of modern penal actions.