刑事庭审实质化与审判方式改革

The Materialization of Criminal Trials and the Revolution of Trial Modes

庭审实质化是刑事审判活动的应然要求,但庭审虚化是我国刑事司法实践中长期存在的突出问题。将审判方式从审问式转为控辩式,为摆脱庭审虚化现象、推进庭审实质化奠定了基础。为了保证庭审在查明事实、认定证据、保护诉权、公正裁判中发挥决定性作用,需要完善举证、质证和认证规则,充实法庭调查和辩论程序。与此同时,还需推动刑事审判模式从传统型向现代型、从"伞形结构"向"三角形结构"转变。我国的刑事审判方式兼具职权主义与当事人主义色彩,但它并非当事人主义和职权主义的简单相加,而是受到文化传统、司法体制、刑事政策、资源状况等多重因素限制,体现出明显的混合性、过渡性和变动性。综合考虑制度路径、立法技术、法治环境等方面因素,我国宜确立直接言词原则和维持卷宗移送主义,并借鉴大陆法系国家的经验,细化直接言词原则的例外情形和加强案卷移送制度自身的正当性。

It＇s generally speaking that the court investigation and the court debate should be the central elements in the criminal proceedings, especially for the judges to find the facts of the case and to apply the laws and regulations, which is called ＂the materialization of the trial＂. In China, however, the trial ＂goes through the motions＂. The perennial problem, called ＂the trial formalism＂, is serious in the practice of criminal justice in China. The revolution of the trial modes, i.e. from the inquisitional proceedings to the accusing and defending proceedings, lays the groundwork for abandoning the trial formalism and improving the materialization of the trial. In order to ensure that the trial plays a decisive role in the processes of the fact finding, the determination of evidence, the protection of the rights of action and the achievement of fair rulings, firstly, it＇ s required to improve the rules of producing evidence, cross - examination of evidence and recognizing evidence and to materialize the process of court investigation and court debates. Secondly, it＇ s required to revolutionize the criminal trial mode from the traditional type to the modern type, and from ＂ the umbrella structure＂ to ＂ the triangular structure＂. The criminal trial mode in China is characterized by both the inquisitorial system and the adversary system, whereas it＇ s not as simple as the combination of both. It＇ s influenced by several factors, such as the cultural traditions, the judicial system, the criminal policies, the resources status, etc.. On the accounts, the Chinese criminal trial mode shows some distinguishing features as mixture, transitivity and variability. The institutional paths, the legislative techniques as well as the law ruling environment will be taken into consideration when the decision is made. In conclusion, it＇ s suggested that the principle of directness and verbalism ought to be established and the doctrine of the deportation of files ought to be preserved in China. Moreover, it＇ s important to learn from the experience of the civil law countries, to detail the exceptions of the principle of directness and verbalism and to strengthen the legitimacy of the doctrine of the deportation of files.