从实践困境看我国刑事自诉圈的立法重构——以对S省若干区县的实证调研为基础

On the Legislation Defection of Private Prosecution Circle in Chinese Criminal Law from the Perspective of Practical Dilemma

我国《刑事诉讼法》关于自诉范围的规定粗疏且紊乱,实践中问题重重。在法定的三类自诉案件中,第一类的"圈"划得过宽,第二类的"圈"边界不明,第三类的内容存在矛盾,等等。需要对现行立法关于自诉圈的规定进行合理重构:调整第一类自诉案件范围,适当缩减第二类自诉案件罪名,以及通过制度变革,解决"公诉转自诉"制度近乎形同虚设的问题,强化适用效果;同时取消现行《刑事诉讼法》第204条关于犯罪客体的限定,避免出现共同犯罪案件中既有公诉又有自诉的尴尬局面。

The current criminal legislation did not clearly provide the private prosecution circle, which results in many problems in practice and difficulties to the judges. The phenomenon of private prosecution becoming public prosecution is severely. The evidence demanding is exactly. The right to choose prosecution or private prosecution leads to the unjust result. The type of private prosecution is imbalance. In the current three types of private prosecution cases, the scope of the first type is unreasonable wide, for the crime of crime of abusing a member of oneg family and the crime of embezzlement should not be included in, and the pri- vate prosecution criteria of the crime of insulting and the crime of defamation are？ not clear, which results in the risk of abusing the litigation ; the scope of the second type is not clear and there lacks the conflict resolution mechanism between the co - existing private prosecution and public prosecution ; and the scope of the last type is contradict, which results in confusion of lawsuit relation and should be adjusted and re - devised. It is suggested that the criminal law should exclude from the private prosecution circle the crime of interfering with the freedom of marriage by force, the crime of abusing a member of one＇s family and the crime of embezzlement, and add the property crime between relatives and the crime of insulting the body; narrow the scope of ＂lighter criminal cases that the victim has proof to prove＂ ; for the ＂private prosecution transferred by public prosecution ＂ case, it should change the useless state through institutional reform and meanwhile strengthen its applicable effect. Abolish the delimitation of the object of crime in provision of 204 in the Criminal Procedure Code for avoiding the embarrassment of the co - existing private prosecution and public prosecution in common crime.