移情式关怀理论在刑事诉讼中的融入研究——以人权保障为视角

On Applying the Ethics of Care and Empathy Theory in Criminal Proceedings:From the Perspective of Human Rights Protection

刑事诉讼现有研究主要集中于客观维度的程序制度建构,而对司法工作人员在认知方面的主观维度缺乏关注。但是,客观的程序制度无法自动产出公正的结果,司法工作人员的决策行为贯穿整个刑事诉讼过程,其主观认知在其中发挥着重要作用,甚至对决策结果产生决定性影响,因此,需要对刑事诉讼主观维度予以足够重视。刑事诉讼主观维度以司法工作人员的道德情感为核心,影响其立场和决策。主观维度的研究可以从移情式关怀理论中得到启发,使人们具有以对他人苦难产生情绪反应的能力为出发点,并提出禁止引发他人苦难,乃至尽力消除他人痛苦的道德要求。在刑事诉讼中融入移情式关怀理论,可以产生舒缓惩罚犯罪原则与保障人权原则之间的张力,推进无罪推定原则的完善,为审判中心主义提供支持等积极效果。虽然,移情式关怀理论无法避免人类主观方面的局限,但是,通过司法工作人员的立场确立和诱导训练可以弥补刑事诉讼人权保障中的不足。

Human rights protection is one of the goals of criminal proceedings.In order to achieve this goal,current research has focused on the construction of the objective dimension of criminal proceedings,i.e.,taking the specific procedural system as a means,but having paid little attention to the subjective dimension of criminal proceedings in terms of the perception of judicial officers.However,an objective procedural system cannot automatically result in a fair outcome.The decisionmaking of judicial officers is throughout the criminal proceedings,and their subjective cognition plays an important role and may even have a decisive impact on the consequence,which therefore needs to be studied closely on the subjective dimension by judicial officers in criminal proceedings.The problem is that the subjective dimension of criminal proceedings involves regulating the thinking of judicial officers.However,since the inner thoughts of others cannot be identified,it is challenging to construct a means of regulating the thinking of judicial officers directly,so it is necessary to complete the examination indirectly by clarifying the ethics that judicial officers should uphold in criminal proceedings.The ethics of care and empathy theory can help with this.The theory suggests that we can give an emotional response to the suffering of others,and this emotional response,in turn,places a moral demand on us to prohibit provoking the suffering of others and to endeavor to eliminate the suffering of others.The introduction of the theory in criminal proceedings is exemplified by applying the standard of proof in criminal cases through Singaporean scholar Ho Hock Lai’s research.Ho Hock Lai takes the decision-making nature of applying the standard of proof in criminal cases as an opportunity to introduce the ethics of care and empathy theory,arguing that the standard of proof in criminal cases should be a context-dependent variable standard and that the ethics of care and empathy theory provides the basis for judgment.Ho Hock Lai’s research can be followed up further:since the decision-making of judicial officer carries out the entirety of criminal proceedings,the ethics of care and empathy theory can also be integrated into criminal proceedings as a whole to make up for the inadequacy of research on the objective dimensions of criminal proceedings,provide moral evidence for them,and even assist in the improvement of the system.For example,the ethics of care and empathy theory can eliminate the tension between punishing the convict and protecting human rights.While it is believed that these two missions are in opposition to each other and irreconcilable,the ethics of care and empathy theory can weigh the underlying conflict between fairness and efficiency so that the two can be viewed as a whole.Another example is that the ethics of care and empathy theory can enrich the core of the principle of presumption of innocence and assist in improving this principle in our criminal procedure system.Furthermore,the ethics of care and empathy theory can also be used to justify the trial-centered reforms that have taken place recent years in China,whereby the judge should personally face the defendants and have an empathetic response to them.These examples do not exhaust the scenarios in which the ethics of care and empathy theory can be used in criminal proceedings.The ethics of care and empathy theory can be used throughout the proceedings as an ethical norm.However,it is not immune to the general limitations of human subjectivity,fortunately the risks of which can be mitigated through judicial officers’standing confirmation and induction training.