论性侵案件法官对被害人的诉讼关照义务——以欧洲人权法院对Y诉斯洛文尼亚案的裁决为切入

On Trial Judge's Duty of Litigation Care to Sexual Assault Victims: From the Perspective of the Decisions of Y v. Slovenia in the European Court of Human Rights

2015年欧洲人权法院对Y诉斯洛文尼亚案的裁决强调了法官在性侵案件中积极调查、迅速审判、保护被害人尊严的关照义务,并通过"整体平衡"和"权衡法则"的方法设定了关照义务行使的边界,为衡平权益的冲突提供了全新的视角,体现了欧洲人权法院关照与权衡的基本立场。这一立场与欧洲传统的"司法债务"观念有关,亦反映了对性侵被害人保护的整体趋势,对我国有较强的借鉴意义。实证研究表明,我国性侵案件的审理存在查明案件事实难度大、审理时间长、关照与权衡意识缺乏等问题,有必要从需求、关照与界限三个层面构建性侵案件的关照体系,权衡被告人权益,实现审判的整体公正。

The judgement of Y v. Slovenia in the European Court of Human Rights in 2015 em- phasizes the duty of litigation care of presiding judge, including positive investigation, efficient judgement and protection of victim dignity. In addition, the judgement has set the boundary of duty by applying the overall balance rule and rule of weigh, providing a brand new view on balancing the conflict of rights and interests. The judgement has reflected the basic stand of care and balance. This stand relates to the principle of the traditional European judicial debt concept, also reflects the overall trend of protection in sexual abuse victims, which is referential significant to China. Empirical re- search shows that in China, there are many problems such as difficulty in finding fact, long trial time, lack of care and balance in the case of sexual assault cases. It is necessary to construct a care system for sexual assault cases from three levels of demand, care and boundary, weigh the rights and interests of defendants and achieve the overall justice of trials.