【作者】 蔡国芹；

【导师】 王福华；

【作者基本信息】 上海交通大学 ， 宪法学与行政法学， 2009， 博士

【摘要】 在二十一世纪初,我国刑事司法领域出现了以调解方式处理部分轻微公诉案件的改革试点项目,其逐渐扩展态势广受社会关注。刑事调解作为一种犯罪处置方式,是指被害人与犯罪人在平等、自愿的基础上,经调解人劝导、协调,双方就犯罪事件进行和平协商,犯罪人通过主动认罪、赔偿损失、赔礼道歉等方式取得被害人的谅解,国家司法机关则据此对犯罪人作出从轻或免予处罚的处理。在性质上,刑事调解是“刑事纠纷解决的权力与权利合作模式”,其本质是刑事案件改以民事方式处理,抑或是民事损失的赔偿影响了刑罚的具体适用。刑事调解通过转换视角,把犯罪首先定义为是对被害人个人权益的侵害。受到犯罪影响的相关各方参与事件的解决,更能充分满足各自的具体需要。它强调的是被害人权利和尊严的修复、犯罪人积极承担责任和重新回归社会、犯罪后社会关系复和以及社区安全的重建。作为一种全新的刑事司法方式,刑事调解对法律适用平等、无罪推定、罪刑法定、罪刑相适应等刑事司法基本原则的贯彻以及刑罚的威慑力和司法程序的法治化将产生一定影响,但却契合了无害正义、程序主体参与、刑法谦抑性、诉讼契约、刑罚个别化、新社会防卫和恢复正义等基本理论。在西方主要法治国家,刑事调解是恢复性司法运动中的产物,也是恢复司法的主要程序方式之一。其社会背景与被害人保护运动、非刑罚化刑事政策的扩张和社区矫正的兴起密切相关。当事人参加刑事调解和民众对此制度的理解及支持,可以从宗教烙印下的宽恕心理、成本计算的平衡心理和叙说宣泄的心理需要等角度进行理论解说。从其程序架构来看,西方国家的刑事调解的主要模式有被害人——加害人调解模式、团体会议模式和量刑圆桌会议模式,而且在实践运行中取得了被害人、犯罪人和社区三方同时满意的积极成效。在我国,刑事调解的历史可谓源远流长。受制于长期刑民不分的司法体制,古代的刑事调解虽有一定脉络,但却与民事调解的界限不甚清晰。近代时期,特别是革命根据地时期的刑事调解受到了普遍推崇,并且广为适用,而国民政府辖区的刑事调解也在一定范围内存在。由于传统中国的经济基础、历史文化和民族心理等特征,决定了我国传统意义上的刑事调解与域外的刑事调解并非完全等同的概念。形不同,神也有别。因而两者在价值取向、运行架构和中心内容方面明显存有差异。其中,我国传统的刑事调解所受的宗教影响甚小,而“和谐”思想、“无讼”观念、“忠恕”之道、“重义轻利”观念、“礼治”传统和“宽容”的民族心理素质则是刑事调解得以历代传承的思想文化基础。国家权力主导,强调道德训化,个人权利和自由的程序保护让位于纠纷的形式解决,是我国传统刑事调解的重要特征。尽管刑事自诉案件和附带民事诉讼的调解制度在新中国的刑事诉讼立法中早已确立,但现代意义上的刑事公诉案件之调解,则是在二十一世纪初由地方司法机关以司法改革的名义才展开。在某种程度上,轻微公诉案件的调解是传统刑事调解制度的一种复兴,但它被赋予了更多的时代内含,因为它追求和谐社会关系的同时更顾及双方当事人权利保护的需要。与改革开放同步的法制建设进程中,由强调“严惩犯罪”转向试行轻微公诉案件的调解解决,其社会背景是社会控制基本策略的微观调整和构建和谐社会关系的时代主题,直接的法制动因则包括域外恢复性司法运动的影响、保护被害人权利的现实需要、“宽严相济”刑事司法政策的实施、缓解司法公正与效率的矛盾冲突和探索刑事司法改革的创新路径。刑事调解复兴的具体表现是涉及刑事犯罪事项的调解处理呈扩大趋势,即自诉案件的调解比重增加、刑事附带民事诉讼案件以调解为主和轻微公诉案件调解的改革试点增多。就轻微公诉案件而言,调解可发生在立案、侦查、起诉或审判阶段。成功的调解将使被害人、犯罪人和办案机关三方直接受益。社会的间接受益则是再犯率的降低和社会矛盾的缓和。不过,试点刑事调解在取得成效的同时,制度的进一步推行也面临一定的环境忧患。我国目前正处于社会转型时期,社会矛盾日趋尖锐并呈高发态势,犯罪趋势在短期内难以有效遏制,而刑事调解在化解纠纷、实现犯罪的特殊预防以及充分保护被害人权利等方面确有其制度优势,致使其正当性和必要性不容置疑。但长期以改革的名义实施刑事调解,既不规范、统一,也缺乏应有的法律权威。要改变地方司法机关各自为政以及只能借助于不起诉或酌情从轻处罚的规定而实施刑事调解的现状,就应当尽快全面规范刑事调解制度。因此,不仅要在实体法和程序法上确立刑事调解的法律地位,而且要规范其程序运行方式。基于充分保护当事人合法权益的调解理念,有必要实现刑事调解从“权力主导型”向“权利保障型”的转变。办案机关变原来的对话主导者为调解秩序的维护者,并对调解案件的准入和协议结果进行审查监督。对办案机关的职权行为设置制约机制,则旨在防止涉及刑事调解事项的权力滥用。作为“权利保障型”刑事调解的程序化路径,可以在确立刑事调解基本原则的同时,全面规范调解案件的适用范围、明确其适用条件和实施阶段、完善和谈对话的组织方式及程序步骤。在赋予调解协议以法律效力的同时,为违法调解设定救济程序。更多还原

【Abstract】 At the beginning of 21th century, several victim-offender mediation (VOM) programs were carried out by the local procuratorates in China to deal with some minor criminal cases as judicial reformatory measures, which become more and more popular and catch much attention. VOM means the parties of the offence communicate with each other peacefully to find resolutions to restore damages and hurts caused by offences in a conference presided by an impartial mediator. If the offender can confess, apologize honestly, compensate damages and the victim offers forgiveness, the offender is accordingly given a commutation of punishment, probation or a removal of criminal accusations by judicial bodies. It is one way of power and right cooperating in treating some offences, mutual dialogues substitute for adversary proceedings. The nature of VOM is dealing with criminal cases by civil compensations instead of imposing imprisonments or the results of civil compensating influence application of penalty finally.In the perspective of VOM, an offence is not only regarded as a violation of penal code, but also an infringement to the victim. Those who were impacted by the offence should have an opportunity of taking part in resolving in order to meet their individual needs. The VOM programs pay much attention to victim’s material damages and spiritual hurts, but the offender is also encouraged to reintegrate to community if he/she mends his/her way actively, such as making an apology, compensations and penitence. Both victim and offender are equally treated during the mediation process. It emphasizes the restoration of victim’s rights and esteem, offender assuming responsibility actively, reintegration of offender, restoration of social relationship and reestablishment of community safety. The offender’s reintegrating community is much more important than his imposed penalty of imprisonment if he can really regret for his faults.In main western countries, the restorative justice movement began in the mid of 1970s. It originated in the background of the movement of victim protection, the enlargement of non-penalization policy and the popularity of community corrections. VOM process is a mostly adopted one of restorative justice. Even though VOM conflicts with the principle of equal application of the criminal law to anyone committing a crime, the principle of assumption of innocence, the principle of suiting punishment to crime and criminal responsibility, the principle of a legally prescribed punishment for a specified crime, and causes some impacts to menace of penalty and criminal procedural justice to some extent, it meet with the theory of harmful justice, the theory of parties’participation, the theory of restraining criminal law, the theory of litigation contract, the theory of individualization of penalty, the theory of new social defense and the theory of restorative justice. The reason why the parties decide to accept mediation and the process wins popular supports is that psychogenesis of Christian forgiveness and balance of costs and the psychological needs of narration according to western scholars’analysis. The main processes of mediation in western countries are victim-offender mediation, group or family conferences and sentencing-circle. In the light of several authoritative investigations, victims, offenders and their relatives and the community representatives are satisfied with mediating processes and results. VOM play an important part in preventing recidivism and mitigating the stressful relationship between victim and offender in western society.In China, VOM system began to be applied to deal with minor criminal cases since ancient Xizhou state. The judicial tradition was kept down for thousands of years. But it often ignored the difference between civil cases and criminal ones. What the authorities most concerned was the resolution of disputes. During modern times, especially in the democrats revolutionary districts, many kinds of offences could be resolved through VOM, some cases even had to be gone through mediation before formal trial. In the Kuomintang Governmental districts, VOM system existed but was restricted to a few kinds of minor cases. The traditional VOM system of China was corresponded with the system of agricultural economy, Chinese traditional legal culture, people characteristics. The value orientation and procedural model of Chinese traditional VOM system was different from the western VOM system in nature. The state power led the mediating process, the decision-making power of the offence parties was limited, the individual rights and interests were second to public interests and the stability of social order. The VOM system was a supplementary part to formal system of criminal justice. Chinese traditional VOM system was never controlled or inspired by any kinds of religions, but deeply influenced with thoughts of harmony, thoughts of non-litigation, virtue of loyalty and forgiveness, views of friendship more important than interests and tradition of ruling by accustom.Shortly after the foundation of new China, some minor criminal cases can be treated with mediation by the People’s Mediating Committee on the principle of parties’own accord. The private prosecutions and incidental civil actions could be also resolved through mediation by the courts according to the law. A few years later, VOM system for minor criminal cases those should be prosecuted by prosecuting officers was suspended. Accompanied with reform and opening policy carrying out all over the country, crimes those havoc public safety order increased year after year. Even the severe penalty policy couldn’t control the crime trend. The criminal policy of leniency and astringency properly applied was brought forward by the Central Committee of Politics and Law. The People’s Supreme Court and the People’s Procuratorate enacted rules for implementation respectively.At the beginning of 21th century, the Procuratorates of Shanghai, Beijing and other provinces launched VOM programs as experimental programs to deal with minor cases of injury. The current VOM system is similar to traditional mediation model, but the core value of mediation is quite different from the traditional one in the context of restorative justice. Because much theories and experiences of western VOM were introduced into our country, the interests and rights of both parties are prior to the resolution of disputes. The wiliness of parties is the basis of mediation process, but the mediator still dominates in the dialogue situation. He not only analyses legal responsibility, give moral lessons, persuades both of parties into making peace but also help to make the final agreements.The VOM system revived in China after such a long time because of the background of micro-adjusting of social controlling means and the times topic of constructing harmonious socialist society. Its legal context includes the influence of restorative justice movement in foreign countries, victim’s actual needs of right protection, implementation of the policy of lenience and severe penalty properly applied respectively, mitigating the conflicts between the equity and efficiency of criminal justice and experimenting new ways of judicial reforms.In recent years, the rates of private prosecutions and incidental civil actions to be mediated to resolution always keep so high. The experimenting mediation programs of minor criminal cases which can be prosecuted by prosecutors also increase rapidly. Although the current VOM programs have to face some dissents or objections from the criminal theoretical world and the judiciary world, the parties, the judiciary organs dealing the case and the society benefit a lot from successful mediations. Unfortunately, the development of experimenting mediation programs encounter some adverse environmental elements such as statutory absence of criminal mediation, retributive ideas of the public, the low compensating ability of the offender, the belief crisis of judicial authority and the evaluation system of judicial work.China is experiencing a social transformation now. The social disputes become much more serious than ever before. The crime increasing trend is hard to control in a short time. In author’s opinion, the VOM system can play an important role in the special prevention of crimes, especially for minor criminals and those negligent criminals, for the mediating resolution will give them a chance of assuming legal responsibility actively for the victims and the society and putting themselves right after committing crimes. Although the justification and necessity of the VOM system is beyond any doubt, the current mediating processes of the local judiciaries are quite different from each other. It actually influences the validity and the authority of VOM in the name of judicial reform.In author’s opinion, it is necessary to regulate and systemize the VOM process as soon as possible. In order to protect the parties’rights, the right-protected VOM model is more proper than the power-dominated one. The protection of the parties’rights is much emphasized in criminal justice in modern world. If the judiciary organs only maintain the mediating order and review the agreements and the powers for the VOM can be checked and balanced also, the parties can enjoy their rights sufficiently in the direction of the judiciary. The theoretical routes for regulating the process of VOM are establishing the basic principles of mediation, scoping the kinds of cases to be mediated, stipulating the applying conditions for mediating and recognizing the validity of mediating resolutions by adjudications.更多还原