刑事司法进程的四种调控模式评析

A Study on Four Modes of Procedural Control over the Criminal Process

域外法治国家注重将诉讼及时性要素纳入司法审查,在法律程序内对悖离及时性的诉讼进程状态予以调控。我国法律程序虽也存在类似的制度要素,但仅具雏形却难以有效规制过慢或过快的进程状态,不得不过度依赖行政性的管理和监控予以补充。行政监控的强势与程序调控的乏力,诱发诉讼拖延、超期羁押、程序失灵等多方面问题,屡屡引发法学界、法律实务界乃至一般公众的质疑。对此,有必要结合域外经验与中国问题,通过审慎的理论反思与制度检讨,激活我国法律程序内的进程调控功能。

Foreign countries under the rule of law attach great importance to incorpora- ting the element of timeliness of process into judicial review and to regulating untimely criminal process through procedural measures. There are ha. However these mechanisms are too primitive similar procedural control mechanisms in Chi- to effectively regulate delayed or over-hasty ju- dicial process. As a result, China has to rely heavily on powerful administrative regulation, which leads to delays in the proceedings, extended detention, procedure failure and other disad- vantages, and therefore is frequently called into question by legal scholars, legal professionals and the general public. To solve this problem, China needs to combine fore its own national conditions and to activate the procedural control function through in-depth theoretical reflection and institutional review. ign experience with of the legal system