文化辩护在刑事司法中适用情况的实证研究——以青海省为例

The Empirical Research on the Application of Culture Defense In the Criminal Justice——Focusing on Qinghai Province

作为一种辩护策略,文化辩护又称文化抗辩,是指提出与法律代表的主流文化价值观念相冲突的文化背景信息作为证据,证明应当减免被告人的刑事责任。在青海省的刑事司法实践中,文化辩护在刑事实体法和刑事诉讼中已经适用,对定罪、量刑产生了一定影响,文化证据也发挥了一定作用,但文化辩护的适用也存在一些问题亟需完善。完善文化辩护在刑事司法适用的构想包括文化辩护应作为超法规阻却违法事由、建立文化证据的举证责任规则和审查规则。

As a defense strategy,culture defense,also known as culture counterplea,refers to putting forward the cultural background information conflicting with mainstream cultural values held by legal representative as evidence to reduce the defendant＇s criminal responsibility. In the criminal justice practice of Qinghai Province,culture defense that has been applied to criminal substantive law and the criminal litigation,has certain effect on conviction and sentence as well. Besides,cultural evidence has also played an active role. However,we have to admit that there are some problems to be solved in the application of culture defense. Therefore,some measures should be taken to perfect cultural defense,such as taking cultural defense as the extra-statute reason to hinder the illegality,establishing rules of burden of proof and rules of reviewing evidence.