“检察机关刑事诉讼主导责任论”辨析

Examining the Theory of“Procuratorial Organs Playing a Dominant Role in Criminal Proceedings”

刑事诉讼检察机关承担主导责任,是近期刑事检察工作的主线,对检察工作产生了重要影响。落实该理念的重心在侦查程序和审判程序。但基于国际比较视野、分权制衡保障刑事司法公正性的需要、检察官与侦查人员职业素养的差异、检警机构分置带来的组织利益诉求的差异,及我国关于检警关系的特殊制度安排:独特的诉讼架构、"信息孤岛"效应,检察官主导侦查程序不具有可行性。量刑建议是否采用确定刑,是当前检察机关能否主导审判程序的关键争议点。最高人民法院和最高人民检察院相关人员的论证,都有较强的部门色彩,说服力不足。检察官通过量刑建议或其他路径主导审判程序的主张,均不具有合理性。检察官在刑事程序的不同阶段,作用发挥应更为主动,并作引导者、主导者与监督者等不同定位。

The fact that prosecutorial organs should assume the leading responsibility in criminal proceedings is the main line running through the recent criminal prosecution work.The key to implementing this influential concept lies in both the investigation procedure and the trial procedure.However,it is unfeasible to have the prosecutors play the leading role in criminal investigation due to the following factors:internationally,the division of power is necessary to ensure the fairness of the criminal justice by check and balance;there are differences in professional qualities between prosecutors and investigators;the separation between the procuratorial organs and the police means differences in their demands for organizational benefits;and China has special institutional arrangement governing the relationship between the prosecutors and the police,which is characterized by a unique litigation structure and will possibly have an"information island"effect.Whether the determinate sentence should be included in the sentencing recommendations is the key point in the controversies over whether the procuratorial organs can dominate the trial process.The arguments of the relevant personnel of the Supreme People’s Court and the Supreme People’s Procuratorate have a strong sense of protecting departmental interests and thus are not convincing enough.It is not reasonable to argue that the prosecutors should lead the trial process through sentencing recommendations or other paths.Differently positioned as a guide,leader and supervisor,prosecutors should play a more active role in different stages of the criminal procedure.