国家尊重和保障人权的刑事程序模式

Mode of Criminal Procedure for the State to Respect and Protect Human Rights

刑事程序模式选择命题实质是关乎国家如何对待公民、制度如何对待人及如何实现治理现代化的命题。新中国刑事程序的现实模式呈现渐趋明显的人权法、控权法、程序法特征及功效,但主要仍是以控制犯罪为主导的治罪型程序,而非以控制权力为主导的控权型程序,《刑事诉讼法》仍是一部以授权控制犯罪权力为基调的“授权法”。新中国刑事程序治理观呈现了从以“揭露犯罪、证实犯罪和惩罚犯罪”为内核的“旧一元论”到以“打击敌人、保护人民”为内核的“旧二元论”再到以“惩罚犯罪、保障人权”为内核的“新二元论”的演进变迁,然而“新二元论”仍然会造成制度构造及其运行实践中利益博弈与价值选择的两难困境。对此,应当反思其价值性、结构性缺陷,充分认识《刑事诉讼法》的性质及其当代使命,确立以“国家尊重和保障人权”为内核的“新一元论”,逐步迈向以国家尊重和保障人权为重心、以控制犯罪与控制权力为立足点、以正当程序为主线的“一个重心、两个立足点、一根主线”的理想模式。要形成国家尊重和保障人权的刑事程序模式,应着重提升控制权力的功能需求,凸显对正当程序方法及原理的应用,不断优化控制犯罪与控制权力之间的最佳契合状态,实现刑事程序治理现代化。

Choosing a mode of criminal procedure is essentially a proposition about how the State treats its citizens,how the system treats people,and how it modernizes its governance.The actual mode of criminal procedure in the People's Republic of China shows increasingly prominent features and effects of human rights law,law restricting administrative power,and procedural law.However,it is still primarily a crime-control-oriented rather than a power-limit-oriented procedure,and the Criminal Procedure Law is still a"power-grant law"to control the crimes.Since 1949,the view of criminal procedural governance in China has changed from the"old monism"with the core of"disclosing crimes,verifying crimes,and punishing crimes"to the"old dualism"with the core of"fighting the enemy and protecting the people,"and then to the"new dualism"with the core of"punishing crimes and protecting human rights".However,the"new dualism"still causes the dilemma of the balance of interests and the choice of values in constructing the system and its practice.In this regard,it is essential to reflect on its value and structural shortcomings,to fully understand the nature of the criminal procedure law and its contemporary mission,to establish a"new monism"with the core that"the State respects and protects human rights,"and to move gradually towards the ideal mode of"one focus,two footholds and one mainline",specifically illustrated as"the State's respect for and guaranteeing human rights as the center of gravity,the control of crime and power as the footholds,and the due process as the main line.""State's respecting and protecting human rights"is a"center of gravity",addressing the propositions at the level of value theory of criminal procedure;"control of crime"and"control of power"are two"footholds",addressing the propositions at the level of the ontology of criminal procedure;"due process"is a"mainline"running through the criminal procedure.The above three factors constitute the core elements of the theory of criminal procedure mode and construct the basic framework of the criminal procedure.The essential attribute of contemporary criminal procedure(law)is not only a"procedural law"-to provide the operating procedures of criminal governance practice and ensure the legitimacy of the criminal governance process,and a"power-grant law"-strictly limited to the legitimate scope and necessary limits of crime control,but a"restriction law"-regulating the legitimacy of the State's power to control crime,a"human rights law"-to serve the fundamental concept and ultimate goal of the State to respect and protect human rights,while the"new monism"essentially follows and highlights the reflective view of criminal procedure(law),which is intrinsically compatible with the nature and mission of contemporary criminal procedure(law)and fully embodies the rule of law ideology of"adhering to the people-centered approach"and practicing the rule of law"for the sake of the people,dependence on the people,for the benefit of the people,and for the protection of the people."In order to move towards a criminal procedure mode in which the State respects and protects human rights,it should focus on enhancing the functional requirements for controlling power,highlighting the application of the methods and principles of due process,continuously optimizing the best fit between crime control and power control,and realizing the modernization of criminal procedure governance.