我国刑事审级制度的建构与反思
易延友我国刑事审级制度的建构与反思
Construction and Reflection of Chinese Criminal Trial Instance System
期刊名称：《法学研究》
期刊年份：
作者：易延友
单位：清华大学法学院
中文关键词：裁判正当性;终局性;上诉;再审
英文关键词：legitimacy of judgment;finality of judgment;appeal;retrial
中文摘要：
裁判的正当性和裁判的终局性是刑事审级制度建构的两大基本目标。我国两审终审制的建构基本上遵循了大陆法系的模式，但第一审程序在吸收不满、保障裁判的正当性方面存在着先天的不足；第二审程序的某些方面亦有待完善，其在司法实践中表现为，裁判的终局性几乎不成问题，但裁判的正当性则主要来源于实体的正确性。我国刑事审级制度的改革与完善，首先应当着眼于从第一审程序加强裁判的程序正当性，其次应当对第二审程序加以完善，并在完善再审制度的基础上赋予当事人更多的上诉机会，从而使终局的裁判更加具有正当性。
英文摘要：
There are two fundamental values that are regarded significant in constructing trial instance. One is the legitimacy of judgment, and the other is the finality of judgment. These two values are respected not only in continental countries, but also in Anglo-American countries. The identity of the two legal systems is that the first instance procedure is constructed to pursue the value of legitimacy, which is regarded as the basis of the value of finality. In doing so, the two legal systems entitle parties with series of rights, so that a judgment may obtain legitimacy not only from finding the truth, but also from protecting common values as well as procedural justice.There are also differences between the two systems. Firstly, the first instance judgment is the final judgment in Anglo-American countries to obtain finality, but parties are entitled with broad opportunities to appellate review, while in the continental system, the third instance judgment is final. Secondly, the appellate procedure of the Anglo-American system is with a supervising style, which means that the appellate court only review the form of the first instance trial process, and leave the fact finding completely to first instance judges. However, the appellate procedure of the continental countries is a hybrid of supervising and retrial. That is, the second instance procedure is usually a retrial procedure, and the third instance procedure is a supervising one. Following the model of continental countries, the second instance is the final judgment in China. Chinese first instance is to absorb dissatisfaction and obtain legitimacy, but due to the inadequacy of parties’ rights, the legitimacy of a criminal judgment may come only from finding the truth, but not from protecting human rights and other important values. More over, the second instance does not function well in pursuing the value of legitimacy either. Consequently, even though the value of finality is emphasized on, it is a mansion based on unstable bases. In practice, although the finality of a criminal judgment is no longer a problem, the legitimacy problem is still salient. Consequently, to improve China’s criminal trial instance system, we should pay more attention to the legitimacy of the first instance, and make the effective judgments truly final.
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