审查起诉权司法化的可能空间及合理限度

On Possible Space of Judicialization of Prosecution Review Power and Its Limitation

审查起诉权司法化契合当前司法改革,符合检察制度改革的趋势和潮流。但在我国司法实践中,审查起诉程序的裁断功能存在不同程度的失灵现象,主要表现为办案检察官的独立性保障不足,当事人权利被有意无意忽视,以及审查起诉存在不当的中间处理等。此现象有违审查起诉权司法化改革的预期。完善之道在于推进审查起诉权运行适度司法化,增强审查起诉权行使的独立性和辩护律师的异议参与权等。审查起诉权司法化须在合理限度内运行,适用范围宜界定在合理区间以兼顾效率,目标是在形式合理与实质有效,多元化设计与协同化运行以及集体化的"惯性司法"和个体化的"责任司法"间达致平衡,从而铸就审查起诉权的司法品格以实现司法公正。

The judicialization of prosecution review power conforms to current trend of judicial reform, specially the trend and mainstream of procuratorial reform. However, in judicial practice, there is dysfunction phenomenon as for the adjudicative function of the review procedure of prosecution to some degree, which are the undue effect on the independence of prosecutor handling the case, the rights by the parties neglected intentionally or unintentionally,improper intermediate dispositions in the review of prosecution and so on. The facets as mentioned above is out of tune with the trend of judicialization of prosecution review power and is not beneficial to the realization of expectation, and it is in need of promoting the moderate judicialization of prosecution review power and strengthening the independence of prosecution review power and the right of objection participation by counsel and so on. The judicialization of prosecution review power must operate within reasonable limitation, and attach much importance to the reasonable form and substantial effectiveness.The application area should be strictly limited to give consideration the efficiency.The judicialization of prosecution review needs diversified design and coordinated operation and keeps the balance between collectivized "inertial justice"and individualized "responsible justice"to mold the judicial character to realize the justice.