刑事缺席审判制度的知情权保障机制——以送达程序为视角的分析

The Safeguard Mechanism for Criminal Trial by Default System:from the Perspective of the Service of Process

通过知情权的保障降低刑事缺席审判程序对被追诉人权利克减的可能性,具备法理正当性与实践正当性,也是国际刑事司法领域的惯常做法。送达程序的妥善安排是保障知情权的核心要义,而“重实体、轻程序”的传统诉讼理念导致我国《刑事诉讼法》对缺席审判送达程序的规定存在立法空白,不利于被追诉人的权利保障及国际刑事司法协助工作的顺利开展。应当通过明确送达标准、扩充送达主体、厘清证明责任等途径确保实质送达,并将公告送达排除在外。针对查无下落的被追诉人,不得适用缺席审判程序。

Applying safeguard mechanism for the right to know to reduce the possibility of the reduction of the accused right caused by the criminal trial by default is consistent with the legal and practical legitimacy as well as a convention in the field of international criminal justice.A well-arranged service of legal process is of vital significance to protect the litigants’right to know,however,there are legislative gaps in the Criminal Procedure Law for the service of legal process in the trial of default due to the traditional lawsuit idea of appreciation of the entity and neglect of the procedure,which has negative impacts on the rights protection for the accused and the conduction of international criminal justice assistance.Effective measures such as defining the service standards,extending the service subjects and clarifying the burden of proof should be taken to assure the essential service while excluding the service by publication.In addition,it is not applicable to carry out trial by default on the missing accused.