刑事诉讼中变更公诉的限度
周长军刑事诉讼中变更公诉的限度
Limitation of Prosecution Modification in Criminal Procedure Law
期刊名称：《法学研究》
期刊年份：
作者：周长军
单位：山东大学法学院
中文关键词：变更公诉;审判对象;诉因;公诉事实的同一性
英文关键词：prosecution modification;trial object;count;the identity of prosecution facts
中文摘要：
对于检法机关变更公诉，刑事诉讼法没有明确规定，主要是通过司法解释等规范性文件予以确立。检察机关变更公诉主要存在于罪名相近、容易混淆的案件中，表面看所占比例不大，但散见于绝大多数审判环节，且没有法定的次数限制，变更方式也较为随意，缺乏必要的规范；法院在变更公诉方面较为活跃，多数变更公诉决定由其自行作出或者建议检察机关作出；在变更公诉的对象方面，犯罪事实和罪名的变更最为常见；变更公诉的内容存在严重的“脱法”现象，程序正当性也多有不足，被告人的诉讼防御利益缺乏有效保障。改革变更公诉制度，必须培育变更公诉的限度意识，重构变更公诉的实体控制模式，确立诉因构造基础上的变更公诉制度；厘定变更公诉的程序边界，将不利于被告人的变更公诉限定在一审判决前，健全检法权力相互制衡机制，完善被告人权利保障机制。
英文摘要：
In China, instead of specific provisions in criminal procedure law, prosecution modification by procuratorates and courts is mainly established through such normative documents as judicial interpretations, so that there is not only a lack of clear understanding of this issue by legal practitioners, but also a serious lack of theoretical research on this issue by scholars. Empirical study has indicated that prosecution modification by procuratorates mainly applies to cases that have similar accusations and are easily confused with each other. Although such cases seem small in proportion, they are scattered in various links of trial and there is no legal restriction on the number of time of modification, or legal norm on the method of modification, which are very casual in practice. The court is more active in this respect, and most of the modifications are suggested by the courts or made by courts themselves. As far as the objects of modification are concerned, the most common prosecution modifications are the modification of criminal facts and accusations. Prosecution modification has such problems as serious deviation from law in terms of its content, insufficient procedural legitimacy, and lack of effective protection of the procedural defense interest of the defendants. To solve these problems, China must try to eliminate misconceptions, cultivate the consciousness of limitation, reconstruct entity control mode, and establish a system of prosecution modification based on the structure of counts. Moreover, China must also determine the procedural boundaries of prosecution modification in the three dimensions of time, power and rights, free the defendant from disadvantageous prosecution modification after the first instance judgment, improve the mechanism for the check and balance between the procuratorate and the court and the mechanism for the protection of the rights of defendants.
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