新间接审理主义 “庭审中心主义改革”的主要障碍

The New Doctrine of Indirect Trial The Main Obstacles of "Court Hearing-Centered Procedural Reform"

自1979年以来,刑事审判制度尽管历经多次变革,却仍然保留了一种新间接审理主义的审判方式。刑事法庭将公诉方案卷材料奉为庭前查阅和当庭调查的对象,使得证人证言笔录和被告人供述笔录在法庭上具有无可争议的证据能力,甚至可以成为法庭认定案件事实的直接根据。这一审判理念的形成,与那种流水作业的诉讼构造模式、实体真实至上的价值取向、法官倾向于刑事追诉的理念以及建立在办案期限基础上的效率意识有着直接的关系,并带来了一系列消极的诉讼后果。在一定程度上,刑事法官庭前产生先入为主的预断、法庭审判流于形式、法官排斥被告方的辩护观点、法庭审理失去纠错能力等,都是新间接审理主义所造成的负面影响。我国法院近年来对庭审实质化所做的改革探索,尽管有一定的积极效果,但没有从根本上摆脱新间接审理主义的困扰。可以说,克服新间接审理主义的消极作用,确立真正的直接和言词的审理方式,是中国刑事司法改革所要追求的目标之一。

Although the criminal trial system has experienced many reforms since 1979, it still retains a trial mode of the new doctrine of indirect trial. Criminal court regards the investigation dossier trans- ferred by the prosecutors as the subject that must be reviewed before the court and be investigated in the court, which makes the record of the witness＇ testimony and the defendant＇s confession have the proof a- bility incontrovertibly, and even these dossier evidence can become the court＇s direct basis on ascertai- ning the case facts. The formation of this trial idea is directly related with the streamlined procedural structure model, the value priority of substantive truth, the judge＇s tendency of criminal prosecution and the sense of efficiency based on the limited time for handling a case. And the idea also brings a series of negative litigation consequences. To some extent, the prejudgment of the criminal judge formed before the court, the formalization of the court trial, the judge＇s rejection of the defender＇s point of view and the court＇s loss of the capability of correcting errors and so on, are the negative effects caused by the new doctrine of indirect trial. In recent years, China＇s Court has made some exploration in making criminal trail substantive. Although there are some positive effects, the trial still does not fundamentally gets rid of the trouble of the new doctrine of indirect trial. Thatis to say, it is one of the goals of China＇s criminal justice reform to eliminate the negative effects of the new doctrine of indirect trial and to establish the real principle of direct and verbal trial.