冤案难以纠正的制度反思——以审判监督程序为重点的分析

An Institutional Reflection on the Difficulty to Correct Wrongful Convictions:An Analysis Focusing on the Retrial Procedure

在我国实践中,冤案的纠正异常困难。许多冤案都必需被冤者及其家人长期申诉、上访,律师以及社会正义人士鼎力支持,媒体长期不断报道,甚至真凶出现或者"亡者归来",最终才能迫使检察院、法院启动再审。就审判监督程序而言,导致冤案难以纠正的原因主要有三项:一是再审的审判主体规定不合理;二是启动再审的条件被严重拔高;三是证据保管制度不健全。要解决冤案难以纠正的问题,应当采取以下措施:一是改革再审的审判机关,规定再审必须由上级法院审判;二是厘清再审的证明标准,严格区分申诉再审、法院和检察院启动再审以及再审改判无罪的证明标准;三是强化对被告方权利之保障,完善申诉以及审判监督程序的法律援助、阅卷制度;四是建立规范的定罪后证据保管制度,确保在申诉、再审时有充分的证据审查原审裁判是否确有错误;五是建立合理的DNA鉴定重启制度,确保在必要时能重新进行DNA鉴定以查明被告人是否确实有罪。

In the practice of China, the correction of wrongful convictions is extremely difficult. In many misjudged cases, only after a long - time appeal or petition of the innocent prisoners and their fam- ilies, the full support of the lawyers and people of justice, a continuous media report and even the ap- pearance of real murderer or ＂Return of the Dead＂, the procuratorate and the court will be forced to start a retrial. As far as the procedure of retrial is concerned, there are mainly four reasons that make it difficult to correct wrongful convictions： first, the court of retrial is unreasonable; second, the criteria of initiating retrial are highly exaggerated; third, the evidence preservation system is not sound; fourth, the rules about liability of misjudgment are too strict. To pave the way for correcting wrongful convic- tions, the following measures should be taken. F＇irst, reform the retrial authorities, the retrial courts must be the higher courts or other courts at the same level. Second, clarify the standard of proof of retri- al procedure, strictly distinguish the standard of proof among appeal to retrial, retrial initiated by courts and prosecutors, and acquittal after retrial. Third, strengthen the protection of the defendant＇ s rights, improve the legal aid and case file review institutions for retrial appeal procedure and retrial procedure itself. Fourth, establish a standardized post -conviction evidence preservation system to ensure that there will be sufficient evidence to be reviewed whether the original judgment is indeed wrong in appeals and retrials. Fifth, establish a reasonable system of post - conviction DNA identification system, to en- sure that DNA identification can be restarted to determine whether the accused is indeed guilty when it＇ s necessary. Sixth, properly limit the scope of liability for misjudgment, and reduce the man - made ob- strnction to correct the wrongful convictions.