摘要
2012年刑事诉讼法重新确立了全案移送制度,这表明我国刑事诉讼程序改革的目标向着更为务实的方向调整。但是,2012年刑事诉讼法并未明示控方全案移送的卷宗笔录在审判阶段应如何使用。正确的做法是:庭前审查与庭前准备这两个程序环节,应主要依托控方卷宗材料来展开,强化庭前审查的实质性与庭前准备的充分性;而法庭审判一旦正式开启,则应严格贯彻直接审理原则,控方卷宗笔录仅能在有限范围内发挥作用。当前需要极力避免的一种错误做法是:在开庭之前禁止法官阅卷,在庭审过程中则对包括2012年刑事诉讼法第187条第1款在内的诸多彰显直接审理原则之要求的规定作限缩解释,从而将卷宗笔录作为法庭调查的主要对象。
The system of transfer of the complete dossier, which was abolished in 1996, was re-estab- lished when the Chinese Criminal Procedural Law was amended in 2012. The re-establishment of this system means that the objective of criminal procedural reform in China has shifted from the radical re- form of the criminal procedure towards the more urgent and practical goal of realizing the substantiality of trial. However, the revised law does not clearly indicate how all the documentations and records provided by the prosecution should be used at the trial stage. This author believes that the proper way to deal with this problem should be the followings： both the preliminary hearing and the preparation for the trial procedure should be carried out basically on the basis of the documentations and records submitted by the prosecution and the dossier should be regarded as the main target of review in the preliminary hearing as well as the important tools for the pretrial preparation, so as to enhance the substantiality of the preliminary hearing and the sufficiency of the pretrial preparation. However, once the trial begins, all evidence should be presented directly before the judges who decide the case. As a result, the documentations and records submitted by the prosecution could be used only within a particularly limited scope. One mistake in the current practice that needs to be corrected is prohibi- ting the deciding judge from looking through the documentations and records before court trial while giving restrictive interpretation to the rules embodying the requirements of the principle of direct hear- ing, including Art. 187 （ 1 ） of Chinese Criminal Procedure Law, and making the case documentations and records the main targets of investigation by the judge during the court trial.
出处
《法学研究》
CSSCI
北大核心
2016年第6期155-174,共20页
Chinese Journal of Law
基金
中国法学会部级法学研究一般项目“审判中心主义视角下的行政执法证据准入问题研究”(CLS(2015)C50)的成果之一
关键词
全案移送
预断排除
庭前审查
庭前准备
直接审理
transfer of the complete dossier, exclusion of prejudgment, preliminary hearing, prepa-ration for the trial procedure, direct hearing
