略论法院主动启动刑事再审

COURTS ACTIVELY INSTITUTE A CRIMINAL RETRIAL PROCEDURE

急于取消法院主动启动刑事再审,有悖于我国的文化传统,不符合公正与效率的价值目标。在一定条件下法院主动启动刑事再审,不是"无诉而审",而是一审、二审之诉效力的延伸与补救,不是对诉权的侵夺而是对诉权的监护,合国情,顺民意,有利于提高司法公信度和司法效率。我们应以审判行为瑕疵为标准,区分生效裁判"客观上错误"与"法律上错误"来确定法院主动启动刑事再审的范围。

Hastily abolishing the power of courts to actively institute a criminal retrial procedure is not in accordance with the cultural tradition of China and the procedural value, such as justice and efficiency. Under certain circumstances, a criminal retrial procedure actively instituted by the people's courts is not a trial without sueing but the extention and remedy of the first and second trial's effect. It is not an infringement of litigious right but a protection of it. Remaining certain power of the people's courts to actively institute a criminal retrial procedure will help us improve people's belief in judicature and the efficiency of it. In my opinion, the better solution is defining the scope of cases whose retrial procedure can be actively instituted by courts. And we should set up a principle to distinguish objective errors and lawful errors of an effective decision according to the defects in the trial behaviors.