论“告诉才处理”案件的追诉形式

On the Form of Prosecution in "Cases Accepted at Complaint Only"

"绝对自诉主义"未关注国家与个人诉权之间的平衡,将对"告诉才处理"案件的追诉错误地理解为是被害人的私事。在司法实践中,这种理解不仅会造成诉讼资源的浪费,被害人因取证困难而无法获得救济也是常见的现象。对"告诉才处理"案件进行法解释学分析后发现,对此类案件应采公诉与自诉并举的追诉模式。被害人可根据具体情况,自行选择启动公诉或提起自诉。"告诉"的本质是诉讼条件,它会制约刑事追诉整体的合法性。在公诉过程中,无论是在侦查、起诉还是审判阶段,告诉欠缺或撤回,均应从程序上终止诉讼。被害人有自诉权,但现行自诉制度的设计妨碍了其诉权实现。应当区分起诉条件、诉讼条件和有罪判决条件。立案时只需对形式性的起诉条件做出审查,而对诉讼条件和有罪判决条件需在法庭审判阶段进行"二元复式"审查。当条件欠缺时,分别做出不受理裁定、驳回起诉裁定和无罪判决。

The doctrine of ＂absolute self-prosecution＂ ignores the balance of the right of prosecution between the state and the individual, and misunderstands the prosecution of ＂ca- ses accepted at complaint only＂ as the private matter of the victim in such cases. In judicial practice, such a misunderstanding results not only in the waste of litigation resources, but also in the inability on the part the victim to obtain remedy due to the difficulties faced by him or her in the taking of evidence. An analysis of ＂cases accepted at complaint only from the legal hermeneutic perspective shows that a mode of combination of public and private prosecution should be adopted in such cases. Namely, the victim in such cases should be able to choose between public or self prosecution in light of concrete circumstances. The essence of ＂complaint＂ is con- ditions of action, which affects the legitimacy of criminal prosecution as a whole. In a case of public prosecution, whether at the stage of investigation, prosecution, or trial, both defects in and withdrawal of complaint should lead to the termination of the proceedings. The victim has the right to self-prosecution. However, the design of the current self-prosecution system im- pedes the realization of this right. Distinctions should be made between conditions of prosecu- tion, conditions of action, and conditions of guilt verdict. At the s only natio the formal conditions of prosecution need to be examined. At tage the of placing a case on file, trial stage, n of conditions of action and conditions of guilty verdict need to be carried a dual examiout. The court should either declare a case inadmissible, dismiss the prosecution, or make a non-guilty verdict if any of these conditions is not met.