限制权利抑或扩张权力——对新《刑事诉讼法》“两高”司法解释若干规定之质疑

Restricting Rights or Expanding power——Questions on Several Rules of Judicial Interpretations of new Criminal Procedure Law issued by the Supreme Court and the Supreme Procuratorate

新《刑事诉讼法》颁布后,"两高"分别修订并出台了各自的司法解释,虽然解释机关的相关负责人均强调"严格依法解释",但是仍不同程度上存在着违背立法精神、突破法律界限自我授权、变相限制权利等问题。主要表现在:对辩护权予以不当限制;最高人民检察院在管辖权问题上自我授权;限缩非法口供排除范围,对被排除的非法证据允许重新调查取证;扩大可以作为诉讼证据使用的行政执法证据种类;突破检察院法定阅卷期限以及延期审理的法定情形;对发回重审案件违法创设新的处理规则。凡此种种,不仅有违程序法定原则,而且损害了法制的统一、尊严和权威,破坏了刑诉法的正确实施。建议最高人民检察院在修订"规则"时对上述问题能予以足够重视,并切实予以纠正。

With the new Criminal Procedure Law enacted, the Supreme Court and the Supreme Procuratorate revised and issued their new judicial interpretations respectively. Although they emphasized their explaining is ＂exactly＂ in accordance with the law, there still have several problems going contrary to legislative spirit, breaking through the legal boundary by self - empowered, dis- guised restrictions on rights in different degree and other issues, which mainly reflects in the following aspects ： Improper restric- tions on the defendant ; the procuratorate self - empowered on its jurisdiction issue ; the narrowed scope of illegal confession exclu- sion as well as recollection of evidence to the exclusion of illegal evidence; expanding types of criminal procedure evidence from administrative materials; breakthrough on procuratorate legal consulting file period and adjourn legal situation; creating new rules illegally to cases remanded, etc. These phenomena not only violated the principle of statutory procedures , but also harmed the u- nification, dignity and authority of the legal system, and undermined the proper performance of the New Criminal Procedure Law. So the author suggests that the Supreme Procuratorate to take seriously and amend them in time.