从纸上谈兵到水滴石穿——非法口供排除程序的构造反思

From Law in Paper to Law in Action——Structural Rethinking of Exclusion Rules of Illegally Obtained Pre-trial Confession

高举人权保障大旗的刑事诉讼立法淡化了刑事诉讼构造的路径选择,但是,基于一种结构缺陷,我国新近立法所确立和完善的审判前供述排除规则很容易沦为"纸面上的法"而难以转化为"行动中的法"。一方面,因为没有庭前法官和庭审法官的分离与法官和陪审团的分权,一元化的法庭可能会造成非法获取的口供从大门排除又从窗户跳进,而"口供排除"和"宣读口供"的两阶段在质证上存在着叠床架屋,更有为普遍地采纳审判前供述这一传闻证据"背书"的反其道而行之的趋势。另一方面,控辩不平等导致庭审最终落入长于法律辩论而轻视事实调查的旧习,而法官也陷入到底是积极调查还是消极听审的内在职责冲突之中。因此,本文设想以案例指导跳脱立法中心主义的虚无缥缈,以配套程序摆脱实质判断标准的人言人殊。

The amendment of criminal procedural law with highly-holding the banner of human rights safeguard weakens the path choice of criminal procedural model. Due to some kind of structural drawbacks, the exclusory rule of illegally obtained pre-trial confessions prescribed and perfected in the newly legislation is easy to be reduced to law in paper and difficult to be turned into law in action. On the one hand, since there are no separations of pre-trial judge against trial judge and court trial judge against jury, there may be the following phenomena appearing in the unitary trial court： the illegal obtained pre-trial confession is excluded from the gate but come back again through the window; the exclusion and presentation of confession overlap the cross-examination; and the endorsement for admission of pre-trial confession, a kind of hearsay evidence, may become popular. On the other hand, due to the unbalances between defenses and prosecutions, the court trial may fall into the old habit ot focusing on law debating rather than fact-finding, and the trial judge may fall into the conflict between active investigation and passive hearing. Therefore, this paper suggests to adopt a case guiding system instead of a way simply centering on legislation and to provide the matching procedures instead of only using the substantive standards.