论审判中心主义对重构诉审关系的影响

Analysis to the Impact of the Trial Centralism on Reconstructing the Relationship between Prosecution and Judgment

诉审分离的功能在于有效地切断审判与侦查之间的直接联系,而刑事司法的发展历程表明,诉审关系极易脱离规范确立的发展方向,游离于刑事诉讼一般规律之外。当前诉审关系出现异化与虚化的根源是侦查权扩张的冲动和事实以及平衡构造的过度理想化,诉审同一原则的缺失和程序性权力的滥用也是诉审矛盾产生的重要原因。从外部视角看,诉审之间应以制约侦查权为基点形成分离与合力的关系,而其内部仍需以制衡与约束作为指导原则。因此,在审判中心主义的视域中,诉审关系的调整方向应是在强化诉审分离的基础上,着力构建完整的限制和约束侦查权体系,以有效保障辩护空间,维护被告人权利,诉审之间的非正式协商也应在满足内在需要的基础上严格限定其效力。

The link between trial and investigation can be effectively cut off through separating prosecution to judgment. The devel- opment of criminal justice has showed that the relationship of prosecution and judgment would be apt to deviating from the norms, and dissociating with the general rules of criminal litigation. At present, the origin of alienation and void to the relationship be- tween prosecution and judgment is the fact that the power of investigation has the impulse to expand. It ＇ s the prior reason in the contradiction between prosecution and judgment that the principle of identity between prosecution and judgment has been in lack and the procedural powers have been abused. From external perspective, the relationship between prosecution and judgment should he defined its characteristics of separation and joint to restrict the investigation, and with internal balance and constraint as guiding principle. Under the trial centralism, the adjustment direction of the relationship of prosecution and judgment should es- tablish the system of limiting and constraining the power of investigation on the basis of strengthening the principle of separation between prosecution and judgment, in order to guarantee the defend power in wide range effectively and protect the rights of de- fendant. Furthermore, the informal consultation between prosecution and judgment should be limited strictly on the basis of meet- ing internal requirements.