禁止双重危险原则的历史发展及其启示

On the Development of the Rule against Double Jeopardy and Its Revelation

禁止双重危险原则发轫于罗马法一事不再理原则,为许多国家的宪法或刑事诉讼法所规定,是现代刑事司法的一项基石原则。确立这一原则是基于以下价值理念:保护人权、防止错判、减少精神损害、维护既判力和促进侦查高效进行。这一原则在两个方面制约国家刑罚权的启动:一是对上诉的限制;二是对重新起诉的限制。但最近,这一原则有所松动。许多国家在立法上规定了这一原则例外的适用,或者通过法律委员会建议这一原则应有例外,允许在特殊情形下重审无罪裁决案件,或者允许检察官对无罪裁决提起上诉。这一变化对我国重构刑事再审制度具有积极的借鉴意义。

The rule against double jeopardy, which originated from the principle of Non Bis Idem in the Roman law, has been stipulated in constitution or criminal procedural law in many nations and is considered a cornerstone of modern criminal justice administration. There are five rationales for double jeopardy principle: the need for civil libertarian, the risk of wrongful conviction, the distress of the trial process, the need for finality and the need to encourage efficient investigation. It focuses on limiting a nation to launch punish powers through confining the prosecutor's powers to appeal and to initiate a retrial procedure. However, at the same time, the law has developed a number of exceptions to the basic rule and more exceptions is suggested by the law commissions in the United Kingdom, Australia and some other countries, which permit retrial of acquitted persons in a narrow range of circumstances, and permit prosecution appeals against various forms of erroneous judicial directions which have resulted in an acquittal. It is suggested that we should draw some revelations from the trend for re-devising our criminal retrial procedure.