刑事“错案观”之理性解读--以王桂荣玩忽职守案为分析样本

The Rational Interpretation of the “Outlook of Criminal Misjudged Case” : Take the Case of Wang Guirong's Dereliction of Duty as Analysis Sample

刑事错案观正确与否,取决于我们对司法性质的认识和对司法规律的把握。刑事错案并非简单等同于刑事审判中出现错误的案件,严格意义上的刑事错案限于违背证据裁判规则造成事实认定错误、最终导致无辜者被错误定罪的案件。刑事错案的制度性成因在于法院内部存在院庭长把关、审委会讨论、向上级法院请示的"行政化"管理模式导致"法官不能独立办案",在于以侦查为中心的职权主义造成公安"有案必破"、检察院"刑案必诉"、法院"罪案必判"的"接力"思维而导致"法院不能独立审判"。刑事错案需要法律的救济和纠正,但应当摒弃"有错必纠"的理念以及由此导致的刑事错案必然追责,可以通过"豁免制度"保障法官履行法定职责。

Whether the outlook of the criminal misjudged case is correct or not depends on our understanding of the judicial nature and the grasp of the law of judicial activities. The criminal misjudged case can not be simply equated with the criminal cases which have some errors. The proper definition of criminal misjudged case should be the case which violates evidence rules and makes erroneous findings of fact and results in that the innocent be wrongly convicted. Institutional causes of the criminal misjudged case have two aspects, one is that the judge can not hear the case independently which caused by the‘administrative'management model, such as the leader's check, judicial committee's discussion and asking higher court for instructions, the other is that the court can not decide the case independently which caused by the investigation centrism making the police hold the idea that ‘all cases should be detected', procuratorate believes‘all criminal cases should be prosecuted' and the court deem that‘all crimes should be sentenced'. Criminal misjudged case should be remedied and rectified, but we should abandon the idea that ‘all mistakes should be corrected' and the accountability of judges. What's more, exemption system should be established to safeguard judges to perform their legal duties.