论违法侦查的实体减轻

On the Substantial Mitigation of Illegal Investigation

违法侦查不仅具有诉讼终止、排除非法证据、要求补正或合理解释等程序性法律后果,也可以引发以减轻刑罚为代表的实体性制裁。作为一种实践理性,以国家机关整体利益为制裁对象的实体减轻根源于程序正义对刑罚正当性的影响,与程序性制裁共同形成违法侦查的双重制裁体系。在量刑层面上,违法侦查动摇了国家机关作为处罚主体的适当性,属于影响责任刑的量刑情节。在程序定位上,实体减轻针对的是违反程序规范且对犯罪嫌疑人、被告人权利造成实质侵害的违法侦查行为。因此,在适用范围上,实体减轻仅与技术性违法侦查和应适用诉讼终止的严重违法侦查存在排斥关系,与非法证据排除规则和程序补救规则的适用对象分别属于并列关系和交叉关系。实体减轻不仅可以彰显程序正义在刑罚正当性要素中的重要地位,也为被告人提供了一种新型救济方式。

While enjoying such procedural consequences as procedural termination, illegal evidence exclusion,required remedy, and reasonable interpretation, illegal investigation can initiate the substantial sanction represented by penalty mitigation. As a practical rationality, the substantial mitigation that treats the holistic interests of national authorities as the object of sanction is rooted the legitimate influence of procedural justice on penalty, which forms the double sanction system of illegal investigation together with the procedural sanction.On the level of measurement of penalty, the illegal investigation shakes the appropriateness of national authorities as the subjects of penalty, falling into the sentencing circumstances of responsible punishment. As for the procedural position, the substantial mitigation aims at the illegal investigation behaviors that violate the procedural norms and cause the substantial harms to the rights of suspects and defendants. As a result,substantial mitigation, in terms of its application, is only exclusive with the technically illegal investigation and the serious illegal investigation that should follow procedural termination, but is in a coordinative relationship with the applicable objects in the exclusionary rule of illegal evidence, and keeps a cross relationship with those in the procedural remedy rule. The substantial mitigation not only manifests the important position of procedural justice in the legitimate elements of penalty, but offers a new way of relief to the defendants as well.