刑事诉讼中重复追诉问题研究

The Study on Repeated Prosecutions in the Criminal Proceedings

大陆法系中的"一事不再理"原则与英美法系中的"禁止双重危险"原则既有共通之处,也有差异,联合国文件确立的"一事不再理"原则是二者的折中性表述。与两者均不相同的是,中国法以客观事实、有错必纠为理论基础,允许检控方和法院对同一被告人采取多次重复的追诉和审判,从而使被告人因同一行为而面临多次危险。应当对中国刑事诉讼中的重复追诉予以法律控制,有必要在调整我国《刑事诉讼法》的利益格局中,确立"一事不再理"原则,同时应改革法院做出证据不足的无罪判决后检察院可以重新起诉的规定和再审制度。

Continental laws put emphasis on the adjudged force and determining force of effective judgments made by courts, while Anglo-American laws prohibit making repeated criminal prosecution against the same act. Non bis in idem, a principle in continental law, overlaps to some extent and at the same time differs from the common law principle——double jeopardy. The principle of non bis in idem appears in the papers of the United Nations is a compromise of the continental law and the common law. Different from both of them, Chinese laws are based on the theory of factuality and that every wrong will be righted, which allows the prosecuting party and courts to prosecute and try the same defendant more than one time and make the defendant face jeopardy many times for the same act committed by him. On the basis of comparative research and positive analysis, legal control should be imposed on repeated prosecutions in the proceedings in China. While amending the criminal procedure act, it is necessary for us to establish non bis in idem to meet the demand of different interests. In order to apply it well, the principle should be expressly defined in the act and standards set to determine the similarities of cases. At the same time, we should make some provisions and set up a regime to ensure that prosecution can re-prosecute the suspect and the court can retry the case if the case was dismissed for lack of evidence.