看守所的客观义务

The Objective Obligation of Detention House

刑事诉讼视野中看守所的权力和义务可以归结为法治中国视野下平衡各方诉讼参与者利益的客观义务。看守所客观义务的法理基础是其行政管理的准中立属性和司法机构之间相互制约的基本原则。兼具追求公正价值和人权保障价值的看守所客观义务由积极义务和消极义务构成。看守所客观义务的实现方式是:在非法证据排除的诉讼、辩护人及代理人伪证罪的诉讼中客观中立提交证据并为诉讼主体依法取证创造条件,督促诉讼主体在看守所中依法履行职责,适度公开看守所的行政管理活动。推动看守所履行客观义务的措施是建构看守所履行客观义务的文化模式、设置看守所工作人员职务犯罪异地管辖的诉讼制度、确定看守所不履行客观义务的法律责任。

In light of criminal proceedings, duties and rights of detention house could come down to objective obligation to balance the interest of litigation participants in the perspective of ＂ China governed by law＂. The legal basis of detention house＇ s objective obligation, which consists of positive duties and negative duties in pursuit of both justice value and human rights protection, lies in its quasi - neutrality as public administration and the basic principle of mutual restriction within judiciary. To realize its obligation, detention house should first submit evi- dence objectively and neutrally and create conditions for the subjects of litigation in the litigation excluded illegal evidence and perjury proceedings concerning defenders and their law - agents, then supervise and urge the sub- jects of litigation to perform their duties according to law in detention centers, and lastly disclose its administrative activities moderately. Measures to push detention house to perform its objective obligations include constructing a favorable cultural pattern, establishing of ＂a cross - trial system of Off - site＂ for crimes within the jurisdiction of detention house and determining the legal responsibility when detention house fails to perform its objective obligation.