法哲学视野下的控辩平衡——以我国刑事诉讼法为例

控辩双方权力(利)的平衡是刑事质证发挥作用的根本保证。我国刑事诉讼法第108条是辩护律师获取证据材料的重要管道。然而现在的150条却几乎把这条管道截断了。后者可以避免先定后审的缺陷,但却使控诉权进一步膨胀辩护权进一步萎缩,导致质证流于形式。倘要让质证发挥其应有的作用,就必须赋予辩方更多的辩护权,以此制衡强大的控诉权。

The balance between the prosecution power and defense right fundamentally makes criminal interrogation perform a use- ful function. In China article 108 in the criminal procedure code amended was an important tube through which the defense could obtain the testimonies needed. However, today article 150 has almost cut off the tube. Although the latter can avoid sentencing before hearing , it has made the power become larger and the right reduced less , as a result the interrogation has lost. If we hope the interrogation can play an indispensable role, we must give such right to the defense that it can keep in equilibrium with the power of the prosecution.