存疑不起诉制度之检讨——由“最牛强奸判决书”事件引发的思考

A Review on non-Prosecution for Doubt——A reflection on the Event of "the most Powerful Verdict on Rape"

存疑不起诉制度是无罪推定原则在刑事诉讼法上的集中体现,因其具有终局性并对当事人的权利义务构成实质性影响,故容易引发争议而滋生风险。存疑不起诉是法定不起诉而非裁量不起诉,不能因存在风险即绕道而行,以至违背无罪推定的精神和原则。要通过严格把握适用条件、强化裁判理由、建立附带民事赔偿机制以及完善庭前评议制度等途径,增强存疑不起诉决定之权威性和可接受性。

Non-prosecution for doubt, which embodies the doctrine of innocence presumption, plays a great role in our criminal procedure law. Its application may redistribute the right and obligation of the parties involved in the litigation to such extent that it may raise disputes and risks. As risky as it is, it is an absolute order rather than free discretion and therefore, it can＇t be avoided and otherwise it will be against the spirit and principle of non-prosecution for doubt. However, as this paper suggested, there＇re ways to improve the authority and acceptableness of non-prosecution for doubt, including a better understanding of criterion, a fuller reasoning of the judgment, an attached civil arrangement and a fair mechanics of open hearing.