论法院变更罪名的有限权及程序构建

On the Limited Right of Count to Change Charge and the Procedural Construction

基于不告不理原则,起诉书指控的罪名在一定程度上对法官有约束力。但法官的中立地位以及全面听审使法官有可能重新认定起诉罪名。由于裁判权高于起诉权以及起诉效力不可分原则,法官基于同一事实而变更指控罪名属于裁判权的应有范围,法官变更罪名应当遵循起诉效力原则并适用告知变更程序。

With the principle of ＂no charge, no trail＂, the indictment is bounding on the judge＇s power to change prosecutorial count. But the judge has more power to renew the count because of his neutral identity and entire heating. Due to the principle that the judge＇s ruling power is bigger than prosecutor＇s charging power and due to the principle that the prosecutorial effect can not be divided, the judge has the right to change the count on the base of same criminal facts. The change should abide the principle of prosecutorial effect and use changing procedure.