论被追诉人本人的阅卷权

On the Right of Reading the Case Files of the Accused in Person

刑事诉讼中被追诉人本人能否行使阅卷权,因关系"发现真实"与"被告作为程序主体"之间的冲突,而争议较大。目前向被追诉人本人开放一定程度的阅卷已成为现代法治发达国家刑事诉讼法的调整方向,我国在"固有权"理论下全面禁止被追诉人本人阅卷的立法与实务值得检讨。被追诉人作为程序主体,应享有阅卷权,尤其是对无辩护人的被追诉人,应赋予其本人直接阅卷的权利。但阅卷权对被追诉人开放所可能带来的制度风险,仍是不可忽视,因此,基于利益的权衡,应根据案件的具体情况对被追诉人本人的阅卷权进行合理限制。

Relating to the conflicts between ＂truth -finding＂ and ＂the accused as the procedural subject＂ in the criminal proce- dure, the issue of whether the accused in person can exercise the fight of reading the case files or not is of significant controversy. In the modem legally developed countries,some adjustment has been made to entitle this right ,in some degree,to the accused in the criminal procedural law, therefore we need more retrospection and reflection on our legislation and judicial practice, which, un- der the influence of the theory of ＂inherent fights＂, still forbid comprehensively the accused in person reading the case files. This treatise aims to advocate that the accused, as the procedural subject, should be entitled the fight of reading the case files, and esp- cially for the accused without any defence lawyer, the right to read the case files directly is more necessary. However, what we can t ignore is the institutional risks brought out by the exercise of this fight. Based on the balence between various interests and val- ues, some reasonable restrictions on the right of reading the case files of the accused in person are indispensable in specific ca-