检察机关刑事审判监督职能解构

Deconstruction of Chinese Procuratorate's Functions of Supervising the Criminal Trial

解构我国检察机关刑事审判监督职能表明,三种行使方式都系诉权范畴,即属诉讼职能。其中,向法院提出"纠正意见"名不副实,实为一种异议;抗诉案件改判比例极低,与检察机关"在刑事抗诉中始终站在客观、中立、公正的立场上,代表国家对法院确有错误的裁判实施法律监督"的辩称不符,二审、再审中的抗诉不过是检察机关提起的上诉和申请再审;对审判人员职务犯罪案件的侦查,实为检察机关调查事实、收集证据的追诉活动,因定性为监督,造成诉讼法律关系混乱和诉讼职能冲突。将检察机关在刑事审判程序中的职能区分为诉讼职能和监督职能,是我国传统刑事诉讼理论研究中的误区,并无实际意义,相反却滋生了诸多负面效应。

The deconstruction of Chinese procuratorate＇s functions of supervising the criminal trial demon-strates that all the three methods of supervising the criminal trial are the functions of litigation and entailed in the litigation right regime. One of these three methods is to put forward a ＂revised opinion＂ to the courts, but this method is by nature a dissenting opinion. The ratio of judgment reversed for eases with the opinion op- posed by the procuratorate is extremely low. This phenomenon cannot match the idea that the procuratorate, io its opposition to the criminal cases, represent the state to observe the legal supervision for these truly wrong ad-judications with a stance of being objective, impartial and fair. In fact, the procuratorate＇s opposition is no more than the appeal and petition for retrial filed by the procuratorate. Investigating the duty crime by adjudi-catory personnel is genuinely the procuratorate＇s activities of investigating the facts and collecting the evi- dences. If such activities are defined as supervision activities, this will cause the disorder of legal relations and the conflict of litigation functions. Therefore, it is traditional misunderstanding in China to divide procuratorate＇s functions in criminal trial into litigation function and supervision function, and this classification is meaningless and produces many negative effects.