我国刑事诉讼控审分离原则的现状与完善

ON CURRENT SITUATION AND REACHING PERFECTION OF THE SEPARATION PRINCIPLE BETWEEN CHARGE AND INTERROGATION IN CRIMINAL PROCEDURE IN CHINA

刑事诉讼控审分离原则要求控诉职能与审判职能在形式上与实质上彻底分开。我国现行的刑事诉讼法对于该原则的贯彻还不够彻底,在侦查、审查起诉和审判程序中还存在许多与该原则精神相背离的地方。对此,笔者认为应当在刑事诉讼审前程序中设立司法审查机制,由独立于庭审法官的预审法官对公诉案件进行实体性审查,在审判程序中严格限制法官庭外调查及主动提起审判监督程序的权利,废除二审程序中的全面审查原则。

The separation principle between charge and interrogation in criminal procedure demands that the function of charge and the function of interrogation should be separated both in the form and in essence. However, the existing code of criminal procedure can hardly carry it out thoroughly. There are many issues which deviate from the very principle in reconnaissance, investigation, charge and interrogation and some other procedures. To counter this tendency, the author thinks that judicature machanism should be established before the precedure prior to the interrogation of criminal suit. The judge in charge of preliminary hearing, who is independent of hearing justice, carries out the substantial examination. The judge should be rigidly limited to investigate outside court and iniates the right to have hearing supervision in the hearing procedure and the all-round examination principle in the second hearing should be abolished.