以审判为中心视角下检察权的定位与运行

The Characterization and Function of the Procuratorial Powers in the Trial-centered Criminal Procedure

推进以审判为中心的诉讼制度改革,须立足我国现存法律框架与司法实践,对审判中心的内涵及其延伸功能进行重新诠释,再从审判中心出发,认真审视检察权的定位与运行。检察机关应进一步规范行使公诉权、扩张不起诉裁量权、强化侦查监督职能,以实现刑事裁判主体地位回归法院、控制进入审判程序的案件数量以及发挥诉讼流程终端控制机能等以审判为中心的诉讼制度改革的基本要求,同时应以犯罪分层为标准,对进入审判程序的案件进行繁简分流,不断优化司法资源配置。

The systemic reform in litigation with the trial at the center is initiated by the Central Committee of the Communist Party of China; however there are different understandings and reactions in both theoretic and practical fields. Chinese judicial organs share the same opinion positively, while public security organs and proeuratorates are not very active, which hinders the development of the reform negatively. This paper analyzes the meanings and extensive functions of the trial-centered criminal procedure reform, and explores the procuratorate＇s responsibilities in this reform, and aims to push the reform under the background of the existing legal framework and judicial practice in China. First of all, the basic meaning of the trial-centered criminal procedure reform is： transforming the original one-way criminal litigation process of ＂ investigation, prosecution, adjudication andexecution＇ ＂ to isosceles triangular criminal litigation structure of ＂ equal participation of the accusing and defending parties and the impartial judge thus to strengthenthe central role of the trial and move back the court to the position of criminal judgment subject. This paper holds the opinion that the trial-centered criminal procedure reform should offer two extensive function. The first one is case filtration. The number of cases that enter trial must be seriously controlled in order to ensure that necessary cases for trial are intensively cultivated. Facts and evidences of the cases being investigated and examined for prosecution can stand the test of the law. The second one is the so-called ＂ end control.＂ The litigation supervision mechanism of ＂dating back from investigation, prosecution to adjudication,＂ must be built in order to change the grimace of investigation combined with the approval of arrest making the prosecution and the adjudication mere figureheads. The former and the latter is progressive. The latter restricts the former, while at the same time the end control of the adjudication is emphasized in the whole proceedings. Secondly, the characterization of prosecutorial powers should be a combination of executive, judicial and legal supervisory powers, normalize the accusation power by making it more prudential and strict; expand the non-prosecution power centered on relative and conditional non-prosecutions; strengthen the power of legal supervision by keeping the independence and passivity during approving arrest. Finally, the procuratorate should choose the right trial procedures for the cases by means of the dividing mechanism of the complex and the simple with the standard of crime stratification. Petty crimes are processed through non-prosecution, the system of leniency based on peccavi or fast-track sentencing procedure; misdemeanors are disposed by fast-track sentencing or summery procedure; felonies are pushed to the ordinary procedure. By means of the above, we can improve the quality of the treatment of crimes with the judicial resources saved from the former ones.