论刑事诉讼契约的缔结

Research on the Conclusion of Criminal Procedure Contract

长期以来契约一直被禁锢于民商等私法领域,但是伴随着经济的发展和国家治理方式的转变,公、私法之间的界限日益模糊,衍生出了一系列共通的价值准则和评判标准。虽然刑事诉讼法是严格意义上的公法、刑事诉讼也是公权力主导的领域,但这并不代表刑事诉讼领域完全不存在契约理念及其方法论的生存空间。恰恰相反,契约所蕴含的平等、自由、合作、效率等理念在刑事诉讼领域同样被奉为圭杲。通过以博弈论的视角对刑事诉讼契约的要素进行分析解构和对国外刑事诉讼契约模式的引鉴,可以为我国刑事诉讼制度的发展完善提供重要参考。

The concept of contract has long been restricted to the private law field, but with the development of economy and the change of state governance, the boundary between public and private laws is becoming increasingly blurred and produces a series of common value standards and judging criteria. Although the code of criminal procedure is dominated by public power, it does not mean that there is no space for the concept and methodology of contract. On the contrary, the ideas of equality, freedom, collaboration and efficiency embodied by the concept of contract are highly valued in criminal procedure. In fact, the idea of contract is already rooted in the legislation, judicial philosophy and judicial practice of criminal proceedings in China, thus we can improve criminal procedure system by analyzing constituent components of criminal procedure contract in the perspective of game theory, and by referring to the existing modes of criminal procedure contract.