以审判为中心的诉讼模式与检察机关刑事抗诉工作的二元博弈及路径分析

Binary Game and Path Analysis of Trial-centered Litigation Mode and Criminal Prosecution of Procuratorial Organs

"以审判为中心"的诉讼制度改革通过证据标准的统一和庭审实质化来加强审判机关在诉讼中的核心地位,同时也为检察机关的抗诉监督工作带来了巨大的挑战。又因检察机关对审判监督只具有程序启动权,审判机关维稳需求等各种因素导致实践中存在抗诉难问题。检察机关的抗诉权和审判机关的审判独立之间存在矛盾的关系,但"以审判为中心"诉讼制度更强调法院的独立审判权。通过构筑检察机关和审判机关的二元博弈模型,可以发现检察机关因抗诉管理成本过高已与审判机关产生妥协式的"配合"。本文通过建立庭审程序监督体系、完善抗诉权分置和博弈策略的选择,建立与"以审判为中心"相配套的审判监督制度。

The ＂trial-centered＂ litigation system reform strengthens the core position of the judicial organ in litigation through the unification of the evidence standard and the substantive trial, and also brings great challenges to the prosecution supervision work of the procuratorial organs. And because the procuratorial organs of the trial supervision only has the right to start the procedure, the stability of the trial authorities and other factors would lead to the existence of protest problems in practice. There is a contradictory relationship between the prosecution right of the procuratorial organ and the trial independence of the judiciary. However, the ＂trial-centered＂ litigation system places more emphasis on the court＇s independent jurisdiction. By means of constructing the binary game model of the procuratorial organs and the judiciary, we can find that the procuratorial organs have a ＂co-ordination＂ with the trial authorities due to the high cost of protest management. In the paper, the author proposes to establish supervision system over the trial system, to improve the separation of protest and the choice of game strategy, and to set up a ＂trial as the center＂ to support the trial supervision system.