司法潜规则影响下的刑事冤案

Hidden Rules' Influence on China's Wrongful Convictions

中国刑事司法冤案的成因有其特殊性,司法潜规则的存在是催生冤案的重要成因。以浙江的张氏叔侄杀人冤案观察,排除合理怀疑、无罪推定、诉审制衡等制度并未得到严格遵守。相反,各项司法潜规则形成"第三领域",国家正式立法与基层司法实践间出现鸿沟。中国司法潜规则既是造成冤案的成因,亦影响冤案救济程序的实际运作。从美国洗冤机制的实效来看,判决后洗冤的难度很高,在判决前纠正冤案则能事半功倍。只有在一审判决之前赋予法院驳回公诉权力、检察环节适度诉讼化、修正绩效考评标准,才能降低冤案率。

We may find some special reasons after having some good research on wrongful convictions in Chinese criminal process.＂Hidden Rules ＂exist in Chinese judicial process which has bad influence on wrongful convictions.If we rethink some wrongful convictions such as ＂Two- Zhangs＂ case happened in 2003.Beyond reasonable doubt,presumption innocence,separation of power between prosecutor and judge which is believed as formal rules in Chinese Criminal Procedure Code faced with dilemma.Not only ＂Hidden Rules＂ throw light on the theory of ＂The Third Field＂,but also judicial hidden rules in China lead some barriers to judicial process.＂Hidden Rules ＂which may enhance the rate of wrongful convictions have bad influence on remedy process for innocent person. If we look forward to ＂Innocence Project＂ of USA we may find it is so hard to rebut or change wrongful convictions so it may prove that the best time to prevent wrongful conviction is the first court before conviction.If the court have the power of dismiss the prosecution,transplant new system of hearing process when prosecuting,adjust irrational judicial evaluating standards,we may reduce wrongful convictions successfully.