【作者】 孙艳；

【导师】 叶青；

【作者基本信息】 华东政法学院 ， 诉讼法学， 2006， 硕士

【摘要】 随着刑事案件的日益增多,在现有的司法资源下,如何运用多样方式,在保证公正的前提下提高效率,迅速审结案件,成为司法部门积极探索的课题,案件繁简分流就是解决难题的有效途径之一。控辩双方的对抗是普通程序庭审方式的适用前提,一旦被告人选择作有罪答辩,承认控方指控的犯罪事实,则对抗消失,亦无必要再适用一般的普通程序。普通程序简化审在被告人作有罪答辩的前提下,在事实清楚、证据充分的基础上,着重简化了法庭调查、法庭辩论以快速审结案件。本文首先从立法、实践和国际环境三层面上肯定了简化审制度出台的合理性。然而,就现行规定而言,其同样存在诸多的缺陷与不足,如内容上不利于案件事实的发现,启动模式不无瑕疵;制度设计上亦存在口供重新成为“证据之王”和庭审重回“先定后审”老路的潜在危险。本文试从程序正当性的重构、完善的理论依据、程序内容和配套制度的建设四层面循序渐进地阐述了对被告人认罪案件适用简化审的完善。正当性依据的定位对任何一项司法制度的设计都具有极其重要的意义,更决定了该制度在司法实践中是否具有可行性和持久的生命力。笔者认为,“酌情予以从轻处罚”的规定过于模糊而不具操作性,缺乏对价,凸现出现行制度设计在正当性依据层面上的缺失,应予以重构,将“从轻处罚”明确化,明晰其正当性本质在于——被告人在这一程序适用中权益的“受偿”应大于其诉讼权利的减损与受限。在完善理论依据上,除了现代刑事诉讼强调的打击犯罪与保障人权并重,我们更要针对被告人认罪案件的特殊性引入诉讼交易和“双赢”的现实主义态度,承认有限正义和“正义”有价,认识到刑罚的最佳适用效果并非单纯地以“重典”求威慑力,而是在于刑罚适用的及时、迅速。最后,对具体程序内容的完善和配套制度的建设则重在帮助保障被告人的合法权益,保障其是在完全明了被指控的事实与罪名、认罪的后果和所放弃的诉讼权利,以及是在全面掌握双方证据力量对比的基础上“自愿、明知、理智”的选择作有罪答辩。现代刑事诉讼强调诉讼民主和维护人权,与传统刑事诉讼以打击犯罪为第一要旨不同,对被告人合法权益的保护逐渐进入理论界和实务界的视野之中。被告人认罪案件以其适用案件类型的特殊性,陷于公正与效率两大基本诉讼价值目标的冲突漩涡之中,引起了学界的广泛关注。本文作者才疏学浅,观点不乏浅薄之处,但期抛砖引玉,敬请方家不吝赐教。更多还原

【Abstract】 With criminal cases mounting in the number, it has come to the attention and research of judicial departments how to achieve a higher efficiency by means of various cases dealing methods based on the current judicial resource, under the premise of guaranteeing the justice. Among them, applying different approaches to cases varying in complexity appears to be an effective way.The confrontation between the prosecutor and defendant constitutes the applicable premise for common trial. However, in case of the defendant’s confession, the necessity for such a common trial disappears with the confrontation vanishing. The current regulation of summary trial just tries to adopt a quicker approach to cases of confession based on clear fact and adequate evidence, mainly shortcutting the court investigation and disputes. This thesis, first of all, admits the reasonableness of design of the summary trial from three levels namely the legislature, practice and international environment. Nevertheless, the current regulation also sees various weaknesses such as defect in the function of fact discovery and the design of the procedure commencement, and potential risks for the confession returning to be the so-called“King of Evidence”and the trial reverting to the previous problem of judgment in advance before the trial.This thesis tries to illustrate its perfection for the summary trial in four progressive steps, namely, reconstruction of the procedure’s justness, consummation of relevant litigant ideas, completion of procedure design in detail and finally, construction of auxiliary systems. Positioning of the justness basis is of great meaning for the design of any judicial system, and furthermore, decides the possibility for the eligibility and consistent development of the system in judicial practice. The writer doubts that the current regulation as“the defendant may get lighter penalty in accordance with specific situations”appears somewhat ambiguous and lacking in clear operation. Moreover, it’s a dialogue without adequate consideration and getting the system of summary trial exposing to a lack of justness. Therefore, it’s to reconstruct the justness basis of the summary trial, clarifying the regulation for lighter penalty and crediting the essence of the justness to the fact that the defendant shall enjoy a compensation of rights for his reduced or restricted litigant rights due to application of the summary trial. On consummation of relevant litigant ideas, apart from the emphasis of modern criminal litigation on cracking down on crimes and protection of human rights in equality, we also need to, in respect of the specialty of the cases applicable, introduce into the idea of litigant deal and practical attitude so as to achieve mutual benefit, admit the limitation of and price for the justice, and realize the penalty application perfects in its quick and timely use, rather than merely threatening by means of several penalty. Finally, as for the completion of procedure design in detail and construction of auxiliary systems, the crucial point lays on protection of the legitimate interests of the defendant, and in particular, guarantee of the fact that his confession is a voluntary, knowing and reasonable choice based on his clear knowledge of the accused crime, the consequence of his confession, his waiver of certain litigant rights thereafter and evaluation of the evidence power on the two sides.The modern criminal litigation emphasized the litigant democracy and protection of human rights. Differentiating from the traditional criminal litigation, which merely cared for the cracking down on crimes and severe punishment for the criminal, the call for protecting the legitimate interests of the defendant has gradually come into the view of the theoretical and practical circle. With its specialty in the applicable cases of confession only, the summary trial finds itself in the sharp confliction between the two great procedural value goals as justice and efficiency, and therefore, arises wide attention in the academic world. Confined by limited knowledge, the writer feels sorry for some immature and superficial ideas that may appear in this thesis. However, the writer just attempts to cast away a brick and attract a jadestone, waiting for valuable guidance by experts.更多还原