刑事诉讼法学研究的转型——以刑事再审问题为例的分析

Transition of Criminal Procedure Law Research:An Analysis from the Perspective of Criminal Retrial Mechanism

我国以往关于禁止双重危险原则的研究表明,刑事诉讼法学研究需要转型。刑事诉讼法学研究的转型首先要确定方向,即遵循刑事诉讼的发展规律,坚持刑事诉讼中"不能放弃的原则",批判错误的观点,以避免在转型时转向。在此基础上,应当正面应对将禁止双重危险原则引入我国刑事再审制度时所面临的复杂因素。在我国的立法和司法历来尊崇"实事求是、有错必纠"的背景下,不仅需要论证禁止双重危险原则在刑事再审制度中更具有正当性,而且在刑事再审制度中引入禁止双重危险原则时,注意不同的法治发达国家的刑事再审制度的特点及共性,在借鉴时应当力求"阻力最小",以逐步完善我国的刑事再审制度。

The Chinese criminal retrial mechanism has been established since the enactment of Chinese Criminal Procedural Law in 1979, and its basic structure and ＂seeking truth from fact and correction whenever errors found＂ as the fundamental principle laying the foundation for retrial mechanism have never changed. However, both the criminal practice and theoretical research have changed dramatically since its establishment. During the twenty years from the beginning of 1980s to the end of 1990s, the academic circle usually interpreted the retrial provisions positively. But since the Chinese government signed or ratified a number of important international conventions for human rights protection from 1998, the academic circle has realized and recognized the principle of double jeopardy, and suggested to learn the retrial mechanism from western countries. Nonetheless, the principle of double jeopardy contradicts with the idea of ＂seeking truth from fact and correction whenever errors found＂, therefore introducing double jeopardy into Chinese criminal procedural system will confront many complicated and tough problems. Those previous academic research outputs could not accomplish the task to reconstruct the Chinese criminal retrial mechanism based on double jeopardy, therefore research transition is necessary. As to the transition of criminal procedural law research, the first thing is to set the direction, which means complying to the development laws of criminal procedure, and asserting those ＂indispensable principles＂ as well as rebutting wrong views in order to avoid retrogression. And on this basis, it is necessary to confront the complicated situations when introducing double jeopardy into Chinese law. In the context of emphasizing the importance of ＂seeking truth from fact and correction whenever errors found＂ in the legislative and judicial circle, it is not only necessary to demonstrate the greater legitimacy of double jeopardy in criminal retrial mechanism, but also necessary to smoothen the resistant force so as to improve the Chinese criminal retrial mechanism gradually.