法官在刑事二审改判中的风险治理决策

Risk Management Decisions for Judges' Revise in Criminal Appeal Procedure

在我国刑事二审改判制度中,二审法官常常要面临着在道德风险、职业风险和人际风险之间的艰难选择。这种状况是由我国二审改判制度的风险环境造成的,而法官们则采用请示制度、发回重审、有罪推定的方式予以应对。改善刑事二审改判制度的风险环境以保证司法公正,有赖于对错案责任追究制度、刑事二审审理范围、改判适用条件及程序等进行全面的改革。

In our criminal appeal procedure, the judges of the appeal court often face to a difficult choice between moral hazard, occupational risks and interpersonal risk. This situation due to the risk environment caused by the revise system in the appeal procedure, which the judges often adopts the way of referrals, remand, or presumption of guilt to deal with. In order to improve the risk environment of the revise system in the appeal procedure and ensure justice, we need to comprehensively reform the accountability on the wrong case, the jurisdiction of the appeal procedure, and the applicable conditions and procedures for revise.