重婚罪:自诉抑或公诉

Bigamy Offense: Private Prosecution or Public Prosecution

在我国,重婚属于自诉案件中被害人有证据证明的轻微刑事案件,既可以由被害人等告诉权主体提起自诉,也可由司法机关依照法定职责主动介入从而启动公诉程序。立法显然的隐含立场是以自诉为主,公诉为辅。这种诉权模式可以较好地避免刑法的负面效应,节约刑罚资源,同时又能有效解决纠纷而获得最大的社会效益,符合刑法的谦抑性要求。将重婚罪直接纳入公诉范围并不能解决该类案件取证难的问题。为有效消解重婚犯罪追究中的不利因素,应当在完善重婚罪实体法规定的基础上,降低自诉标准,实行律师强制代理制度,将刑事和解与调解机制延伸到重婚公诉案件中,并引入暂缓起诉制度。

In our country, bigamy is a light criminal case proved by the evidences of a victim in a case of private prosecution. The subject, the victims, ect. with right of informative action can raise a private prosecution, while the judicial organs can also initiatively intervene into conducting a public prosecution with reference to the legal duties. The implied ground that the legislation holds obviously takes private prosecution as the main part with supplement of public prosecution. This kind of right of informative action would avoid the negative effects of criminal law and save the criminal-punishment resources; in the meanwhile, it would effectively solve conflicts to gain social benefits to the most extent, which tallies with the modest requirements of criminal law. To directly include bigamy offense into the scope of public prosecution can not tackle with the difficulties of obtaining evidences. In order to emancipate the disadvantageous factors when investigating bigamy offense, it is suggestive to lower the standard of private prosecution, realize the system of lawyer＇s coercive deputy, extend the meditation mechanism to the cases of bigamy offense and to take in the system of suspending legal proceedings, which all base on the improvement of regulating the substantive law of bigamy offense.