刑事诉讼法时间效力规则研究

On the Rules of Temporal Effect of Criminal Procedure Law

我国刑事诉讼立法及相关规范未对刑事诉讼法的时间效力问题予以明确,使得法秩序变迁下刑事程序的新旧流转出现了规范适用疑难。对此,学界通常认为应当适用程序从新原则,但相关理解与界说存在问题。在规范论上,基于法律即行适用与法不溯及既往,可以推导出刑事诉讼法的时间效力适用行为时法原则。对于尚未终结的诉讼,因新程序与旧事实可能无法相容,适用行为时法难免对旧事实造成影响,但这只是不真正溯及,不违反法不溯及既往原则。在立法论上,除应明确行为时法原则外,由于法律的不真正溯及仍可能实质损害法不溯及既往背后的法安定性及信赖保护原则,立法者宜通过信赖利益保护理论,预先识别需要保护的信赖利益,继而选择适当的立法方案将此类例外纳入刑事诉讼法体系。

The Chinese Criminal Procedure Law and related regulations have not clarified the rules on the temporal effect of the application of the law,resulting in difficulties in the transition of criminal procedures from these under the old law to those under the new law.With respect to this issue,the academic circle believes that the principle of applying new procedure law should be applied,but related understandings and definitions are problematic.In terms of normativism,it can be deduced from the principle of immediate application of laws and the principle of non-retroactivity of laws that the law in force at the time when the act is committed should be applied in criminal procedures.For unfinished lawsuits,because the procedures under the new law may not be compatible with the old procedural facts,the application of the law in force at the time when the act is committed will inevitably affect these incompatible old facts,but this is only non-authentic retroactivity,and does not violate the principle of non-retroactivity of laws.However,the non-authentic retroactivity of criminal procedure law may still substantially damage the legal certainty and legitimate expectation,which are exactly the values to be protected by the principle of non-retroactivity of laws.Legislators should follow the thinking path constructed by the theory of legitimate expectation to identify the reliance interests that needs to be paid attention to in advance,and then choose an appropriate legislative plan to incorporate such exceptions into the legal system of criminal procedure.