缺乏对抗的“被告人说话式”审判——对我国“控辩式”刑事审判的实证考察

The Non-adversary Process with Only "the Accused Argument":An Empirical Study of China's "Prosecution and Defense" in Criminal Trials

我国立法机关于1996年在吸收了对抗式刑事审判合理因素的基础上,创设了"控辩式审判"方式,以解决庭审走过场的弊端和实现控辩审职能的分化。从司法实践来看,改革者的目标并没有得到实现。我国的刑事审判在实际运作上是一种缺乏对抗的"被告人说话式"审判,具体表现在:庭审上趋于消极但不中立的法官,公诉人对审判的单方面主导,被告人是法庭上的"主角","说话权"受限的量刑辩护人,法庭调查的书面化等。由此导致我国刑事审判制度的双高现象:高效率和高定罪率。

Based on the experience of foreign adversary procedure, a criminal trial system called ＇＂ prosecution and defense＂ was set up in China in 1996 for the purpose of eradicating the defect of court trial as ＂do it as a mere formality＂ and separating the functions of the prosecution and the defense. However, from the perspective of judicial practice, one can do nothing but regretfully find the reformers＇ efforts a failure. In fact, China＇ s present criminal trials are a sort of non-adversary procedure with only ＂the accused argument,＂ which is characterized by the facts that the judges appear passive rather than neutral; the public prosecution one-sidedly dominates the trial; the accused is deemed the prime witness ; the right to argument of the lawyer for the defendant is relatively limited; the evidence produced is basically documentary; etc. Thus, a phenomenon of ＂two highs＂ is inevitably observed in China＇ s Criminal trails, i.e. high efficiency of ending cases and high conviction rate.