论我国刑事缺席审判制度的类型化

The Analysis of the Categorization of the System of Criminal Trial by Default in China

现行刑事诉讼法下的缺席审判制度呈现出明显的粗疏性、写意性特征,立法所采取的规范范式将三种本质上确有差异的缺席情形作以"一体化"规定,由此带来制度本体目的不明、规范之间适用竞合、审判程序之公正价值减损等多重问题。为合理优化中国式的刑事缺席审判制度,刑事立法当以保障被告人之公正审判权为基本价值预设,以类型化思维作为宏观指导,在对制度本体形成较为系统、宏观认识的基础上,建立起以自愿性、目的性和必要性为内容的类型化基准,并围绕三种基准适用之内在逻辑关系进行周延、细致的类型化规范设计,总体上形成以符合与不符合自愿性基准为框架的两大类型,以被告人经依法传唤而不到庭的、被告人扰乱法庭秩序的、被告人潜逃的、被告人非自愿放弃出庭的、被告人死亡,但有足够证据证明其无罪五种情形为具体内容的中国式刑事缺席审判制度的完整轮廓。

The System of Criminal Trial by Default in China in the current Criminal Procedure Law of the People’s Republic of China is apparently in attentive and casual,for three disparate classifications of criminal trial by default are forcibly packaged by the"integrative"legislative mode,bringing about multiple problems such as the vague purpose of the system ontology,the application of institutions over lapping,and the derogation of just ice in trial.With the aim of constructing the System of Criminal Trial by Default in China rationally,criminal legislation is supposed to establish typified benchmarks consisting of voluntariness,purposiveness and necessity on the basis of forming a systematic and macroscopic under standing of the system ontology,taking the safeguard of the right to impartial jurisdiction of the defendant as the fundamental premise on a value level under the macroscopic guidance of typified thinking,and the inherent logical relationship among the application of three benchmarks should be given a typified specification design comprehensively in detail,in a bid to form two types of frameworks as a whole,which take voluntariness as a benchmark,as well as the complete outline of the System of Criminal Trial by Default in China,comprised of five circumstances under which the defendant was summoned according to law but does not appear in court,or disturbs the order of the court,or absconds,or involuntarily waives his right to appear in court,or died while there is enough evidence to prove his innocence.