文字之外:冤错案件事实问题纠正机制分析

Beyond the Words:Analysis of the Correction Mechanism of Factual Problems in Injustice and Incorrect Cases

普通刑事案件的复杂性可以通过与历史遗留性质问题的案件进行对比而得以展示。普通刑事案件发生冤错,主要在于事实认定,而非法律适用。事实认定,是一种无法完全用文字进行表述的内心体验。由于不同的经历、教育背景、职业利益等原因,侦查人员和审判人员对被给定的同一个案件事实,具有不同体验,往往形成认知分歧。案件复审,基本发生在原审生效多年后。原审亲历过现场,并与被告人和其他诉讼参与人有过直接、言辞方式的互动。复审只能依赖纸面阅读。由于时空的转换,原审和复审具有十年以上的视域跨度和认知差异,因此易形成事实判断对立。对于事实问题的认知对立,集中展示在如何看待“真凶”的出现。相对于政治和制度大叙事,以认知能力提高为视角,对于冤错案件事实问题判断和纠正机制的建立,具有更为基础的地位。

The complexity of ordinary criminal cases can be demonstrated by being compared with cases of historically-inherited nature. Wrongful charges in ordinary criminal cases is mainly due to problems in fact-finding, rather than the application of law. Fact-finding is an inner experience that cannot be fully expressed in words. Due to different experiences, educational backgrounds, professional interests and so on, those who participate in investigation and trial have different experiences with the given facts of the same case, and often form cognitive differences. The retrial of a case basically takes place many years after the original trial took effect. The original trial experienced the scene in person and had direct and verbal interactions with the defendant and other litigation participants. Review can only rely on paper readings. And due to social changes, there are often more than ten years of cognitive gap between the original trial and the retrial, which may easily give rise to opposition in factual judgments.The cognitive opposition on factual issues is concentrated on how to respond to the emergence of the “true culprit”. Compared with the political and institutional narrative, the perspective of cognitive ability improvement is more fundamental and critical for the establishing of a mechanism for judging and correcting factual problems in wrongful cases.