摘要
通过综合性实证研究发现,地方法院适用七人合议庭审理的刑事案件数量极少,适用比例极低;适用案件类型分布广泛,但是相对集中;被告人判处刑期分布广泛,重罪案件占比不高,但是除去刑事附带民事公益诉讼案件,七人合议庭适用于重罪案件的比例较高;以法院依职权启动为主,依申请启动的极少,启动受制于法院科层制的约束。主要问题在于:“社会影响重大”条款不合理,适用范围设计未能充分考虑案件繁简分流和陪审员的经验优势,控辩双方的程序救济机制不健全。应当将法定法官原则作为指导原则,重构七人合议庭适用范围,取消“社会影响重大”的判断标准,明确七人合议庭适用于死刑案件以及被告人不认罪的可能判处十年以上有期徒刑、无期徒刑案件。应当排除危害国家安全案件、恐怖活动案件、危害国防利益案件、军人违反职责案件、未成年人刑事案件。
Through the comprehensive empirical research method,this paper studies the application of the seven member collegial panel in criminal cases(hereinafter referred to as the“seven member collegial panel”)in the three years after the implementation of the Law on People’s Assessors.Research findings:The number of criminal cases tried by the seven member collegial panel in China is very small,and the application proportion is very low;The types of cases tried by the seven member collegial panel are widely distributed,but they are relatively concentrated.The sentences imposed on the defendants are widely distributed,and the proportion of felony cases is not high.However,excluding cases of criminal incidental civil public interest litigation,the seven member collegial panel applies to felony cases in a high proportion.The collegial panel’s start-up is dominated by the court’s functions and powers,which is rarely start-up on application,and the start-up is subject to the constraints of the court bureaucracy.There are many problems in the scope of application.Firstly,the“significant social impact”clause is unreasonable.Secondly,the design of the scope of application failed to fully consider the complicated and simple diversion of cases and the experience advantages of the the people’s assessor.Thirdly,the procedural relief mechanism of the prosecution and the defense is not perfect.We must take the principle of judges appointed by the law as the guiding principle,reconstruct the scope of application of the seven member collegial panel,abolish the judgment standard of“significant social impact”,and make it clear that the seven member collegial panel is applicable to death penalty cases and cases in which the defendant may be sentenced to fixed-term imprisonment of not less than 10 years or life imprisonment if he does not plead guilty.At the same time,we should exclude cases endangering the state security,terrorist activities,endangering interests of national defense,the serviceman’s violation of duty
作者
禹得水
YU Deshui(Shapingba District People’s Court in Chongqing)
出处
《法学家》
北大核心
2023年第4期102-116,193-194,共17页
The Jurist
关键词
七人合议庭
人民陪审员
社会影响重大
法定法官原则
Seven Member Collegial Panel
People’s Accessor
Significant Social Impact
Principle of Judges Appointed by the Law
