证成:刑事被告人的出庭权——以分析实证主义为视角

Evidence:the Right of the Criminal Defendant to Appear in Court——From the Perspective of Analytical Positivism

2018年刑事诉讼法修改中增加了缺席审判制度,缺席审判制度的构建不仅将受限侦查行为转变为具备正当理由的执行行为,减轻了侦查机关追逃的压力,而且打破了刑事出庭行为纯粹义务性质的过往。虽然刑事出庭行为在非缺席审判程序中依旧属于义务,但是在缺席审判程序中具有了权利属性。而刑事出庭行为权利的确立是实现被告人诉讼主体化的重要因素,因而对于缺席审判程序应当逐步扩大其案件适用范围,倒逼被告人出庭权利的赋予。

In the amendment of the criminal procedure law in 2018,the system of trial in absentia was added.The construction of the system of trial in absentia not only transformed the restricted investigation behavior into the execution behavior with legitimate reasons,reduced the pressure on the investigation organs to pursue fugitives,but also broke the past of the purely compulsory nature of criminal appearance in court.Although the act of criminal appearing in court still belongs to the obligation in the non-absentia trial procedure,it has the attribute of rights in the absentia trial procedure.The establishment of the right to conduct in criminal court is an important factor to realize the subjectification of the defendant's lawsuit,so the application scope of the case should be gradually expanded for the trial procedure in absentia,and the right to force the defendant to appear in court should be granted.