有利被告的当下中国程序话语——兼及《刑事诉讼法》相关规定之评价

The Procedural Discourse of the Principle of Being in Favor of the Accused in China: also an Assessment of the Relevant Provisions in the Chinese Criminal Procedure Law

在刑事程序法领域,有利被告是作为无罪推定原则的伴生原则与严格解释规则的补充规则而存在的,对于案件事实的认定、刑事再审的提起与刑事诉讼规范的解释具有重要制约作用。就犯罪事实的认定而言,有利被告要求疑罪从无,并以排除合理怀疑作为刑事证明标准。但我国刑事诉讼制度因受"罪疑惟轻"传统观念的影响而未能贯彻疑罪从无的理念。本次《刑事诉讼法》修改因引入排除合理怀疑规则而使疑罪从无得以初步践行,但却未能以排除合理怀疑取代"证据确实、充分"而作为证明标准,使有利被告话语在犯罪事实的认定领域难以得到最大限度的表达。就刑事再审而言,有利被告要求禁止双重危险,允许有利被告的再审而(附条件)禁止不利被告的再审。我国《刑事诉讼法》的修改因固守有错必纠的原则仍将禁止双重危险原则拒之门外,因而使有利被告话语未能在刑事再审领域得到应有的表达。就刑事诉讼规范的解释而言,有利被告要求在穷尽严格解释的一切努力,但对程序性法律规定的准确含义仍不得其解时,采对被告有利的解释。为避免规范明确性的缺失而导致公权力扩张,保障犯罪嫌疑人与被告人的诉讼权利,有必要在恪守严格解释的前提下,反对不利被告的解释,坚持有利被告的解释。

In the fields of criminal procedural law, the principle of being in favor of the accused exists as a principle associated with the principle of presumption of innocence and com- plementary to the rule of strict construction. As such, it plays an important restrictive role in the determination of criminal facts, initiation of criminal retrial, and interpretation of norms of criminal procedural law. As far as the determination of criminal facts is concerned, the princi- ple of being in favor of the accused requires that no punishment should be imposed in doubtful cases and takes ＂beyond reasonable doubt＂ as the standard of criminal proof. For a long time, the rationale of no punishment in doubtful cases has not been implemented in Chinese criminal procedure due to the influence of the traditional idea of ＂ mitigating punishment for doubted crime＂. The recent amendment to the Chinese Criminal Procedure Law introduced the rule of ＂beyond reasonable doubt＂, thereby enabling the principle of being in favor of the accused to be implemented in China for the first time. However, the amendment takes the rule of ＂beyond a reasonable doubt＂ only as a subordinate principle, rather than a replacement, of the principle of ＂reliable and sufficient evidence＂, thus fails to give full play to the role of the principle of being in favor of the accused in the determination of criminal facts. In terms of criminal retrial, the principle demands the prohibition of double jeopardy, permission of retrial favorable to the accused, and （conditional） prohibition of retrial unfavorable to the accused. However, the principle of prohibiting double jeopardy is not introduced into the Chinese system of criminal re- trial because China adheres to the principle of ＇ being true to fact＇ and the principle that ＇ every wrong should be righted＇. In the revision of the Chinese Criminal Procedure Law, law makers not only rejected the principle of prohibition of double jeopardy, but also strengthened to a cer- tain extent the system of retrial unfavorable to the accused. With regard to the construction of norms of criminal procedural law, the principle of being in favor of the accused requires the a- doption of an interpretation favorable to the accused in cases where the precise meaning of the a specific norm is still hard to understand after exhausting all efforts on strict construction. To en- sure the smooth implementation of the revised Criminal Procedural Law, prevent the expansion of public power and violation of private rights resulting from the lack of clarity of norms in the Law, and guarantee the litigation rights of criminal suspects and defendants, it is necessary for China to adopt a construction of norms of criminal procedural law favorable to the defendant un- der the precondition of adhering to the rule of strict construction.