刑事二审不开庭审理常态化现象透析与问题疏解——以D省Z市中院为分析样本

An Analysis of the Normalization of No-hearing in the Criminal Second Instance:Taking the Intermediate People's Court of City Z as a Sample

被告人、自诉人及其法定代理人依据我国《刑事诉讼法》第二百二十三条第(一)款规定,对"第一审认定的事实、证据提出异议"上诉的案件,屡屡遭遇"开庭难"。刑事二审案件不开庭审理的常态化现象,源自于法律条文粗疏、法官认知偏差、案多人少压力、司法场域约束等多重因素。我们应该培塑法官对审理方式适用的价值认知,调整相关法律条文的模糊失当,设置可量化的审理方式适用标准,优化审理方式适用流程等措施,实现刑事二审审理方式的规范化适用。

Appealed cases in which the defendant or the private prosecutor and his legal representative dissents from the facts and evidence determined in the first instance, which may affect the conviction and punishment of the crime, usually cannot get an open court session. This phenomenon is raised by the narrow legal provisions, the cognitive bias of the judges, the pressure of huge number of cases, the constraints in judicial fields, and so on. This paper recommends several measures to promote the way of conducting those, trials, such as cultivating judges＇ cognition on the applicable value of the way to conduct a trial, repairing the vague regulations in law, setting quantifiable standard of the way to conduct a trial, optimizing the trial procedures, so as to achieve the standardization of the trial methods in the criminal second instance.