论检察官审判阶段强制取证权的废除——兼论法庭审判阶段的补充侦查

On the Abolition of Prosecutor's Right to Copulisive Investigations

我国刑事案件一经提起公诉之后,检察院依然可以依据职权继续调查取证,甚至可以通过启动补充侦查程序导致法庭审理的中断。这一现状对控审分离、控辩平等、法官中立等基本诉讼结构之维系构成了严重的威胁。法律应当禁止检察官在法庭正式审理过程中的强制取证行为,而赋予其与辩方平等的证据申请权,并在起诉之后、正式审理之前设置专门的起诉审查程序。

In China, when a criminal case has been prosecuted, the prosecutor is still allowed to investigate. Furthermore, he＇s able to bring a motion for additional investigation, which means the trial has to be postponed. This phenomenon doesnt meet the demands of the criminal proceeding structure such as the separation between prosecution and judjment, the equality between prosecution and defence , the neutralism of judges and so on. Therefore,the power of prosecutor to investigate should be forbidden. However, the law should afford him the right to apply to the court for investigation, which is the same with the defence. And a special procedure shoule be arranged to examine public prosecution.