摘要
检察官客观义务,是指检察官超越控方立场,坚持客观公正。检察官履行客观义务是检察制度的基本要求,但基于不同的司法制度背景,形成以德国法和美国法为代表的两种类型。检察官为履行打击犯罪的职责需成为热情的控方当事人,又因客观义务而应充当冷静的、无偏倚的司法官,而这两种角色是相冲突的。应当注意客观义务论作用的限度并警惕其可能产生的负面效应,同时注意通过外部制度保证客观义务。在我国,因为检察制度的性质及其制度背景,更须确立检察官客观义务。为此,需要进行一系列的调整,如检讨与合理设定内部绩效制度、在一体化与独立性之间寻找平衡点,尤其应注意遵循诉讼规律,维系诉讼构造功能。
The duty of procurators to seek objectiveness refers to the duty that procurators go beyond their prosecutorial stand and stick to objectiveness and justice. The duty to seek objectiveness is a basic requirement of the prosecutorial system, because the establishment of prosecutorial system by state is to safeguard legal orders and social justice. However, due to different judicial backgrounds, such duty has taken two different forms respectively represented by Germany and the United States. The significance of such duty can be seen from the contradictions and difficulties in realizing it. On the one hand, procurators need to implement their function of fighting crimes, so that they must be enthusiastic prosecutors. On the other hand, the duty to seek objectiveness requires them to act as calm and impartial judges. Obviously, these two roles are contradictory, and this contradiction impedes the performance of the duty to seek objectiveness. It is to prevent and eliminate the unilateralism and abuse of power due to this contradictory position that the law requires specially that procurators should perform their duty objectively. Thus we should notice the limitation of the duty to seek objectiveness and stay alert against its negative effects. Meanwhile, we should guarantee the realization of such duty through external mechanisms. In our country, due to the political and judicial context, it is extremely necessary to establish the duty of procurators to seek objectiveness, especially under such a background in which the supervisory function of the procuratorial organs is further strengthened. For the realization of such duty, we need to make a series of reform, such as re-examining our internal Performance Appraisal System, balancing unification and independence, etc. We should pay special attention to the maintenance of righteous litigious structure and the respect of litigious laws.
出处
《法学研究》
CSSCI
北大核心
2009年第4期137-156,共20页
Chinese Journal of Law
关键词
检察制度
客观义务
司法公正
法律监督
prosecutorial system, duty to seek objectiveness, judicial fairness, legal supervision
