法学研究

文章摘要

刑事程序比例构造方法论探析

Methodology of Proportional Construction of Criminal Procedure

DOI：

英文关键词: criminal procedural construction;the principle of proportionality;proportional construction of criminal procedure;dynamic proportional adjustment

基金项目:

作者	单位
秦策	南京师范大学法学院

摘要点击次数: 1413

全文下载次数: 1011

中文摘要:

刑事程序比例构造的要义是以比例原则为基础，对刑事诉讼中专门机关行使的各种强制性、干预性的程序性权力，进行合乎比例的体系化控制。传统上比例原则主要是一项司法原则，而其立法视角的确立与强化是刑事程序比例构造的逻辑起点。刑事程序比例构造的基本模型包含两重基本的比例关系：一是刑事诉讼措施与案件情形之间的比例关系；二是刑事程序针对不同强度的诉讼措施加以控制的比例关系。案件情形轻重、诉讼措施强弱、程序控制宽严的立法表述是一个方法论瓶颈，但可以通过类型化技术加以解决。静态比例性分析有助于对现有制度的诊断与评价，而动态比例性调节则是在制度改良过程中弥补比例性缺失的有效工具。

英文摘要:

Based on the principle of proportionality, the proportional construction of criminal procedure aims at proportional systematic control of various compulsory and interfering procedural powers exercised by special organs in the criminal procedure. Traditionally, the principle of proportionality is mainly a judicial principle. The establishment and strengthening of the legislative perspective is the logical starting point of proportional construction of criminal procedure. The basic model consists of two sets of basic proportional relations. the first are those between criminal procedural measures and circumstances of the cases they are dealing with, and the second are those between criminal procedural controls and the criminal procedural measures they are targeting at. The gradient legislative expression of the three analytic levels, namely, the seriousness of the circumstances of the case, the strength of criminal procedural measures, and the strictness of criminal procedural controls, is a bottleneck in methodology, which can be overcome by type analysis techniques combined with the litigation situation and the life facts. The circumstances of a case can be typified according to the type of crime and punishment, the type of the accused, and the type of litigation condition; litigation measures can be distinguished in strength or harshness in light of time, space, method of implementation, interests of the accused, public interests and the related persons, whereas the strictness of procedural control can be adjusted in light of the approval authority, authorization writ, applicable conditions and deciding procedure, process control, remedies, sanctions and other typifying standards. This theoretical model can be used not only to carry out static diagnosis and evaluation of the existing criminal procedural system, but also to make dynamic proportional adjustment, thus serving as an effective tool to remedy the deficiency of proportionality in the improvement of the legislations.

查看全文下载PDF阅读器

关闭