Criminal proceedings preliminary analysis of failures (the)

Keywords: program failure / legal consequences / litigation cost / performance evaluation / legal traditions / judicial system

Summary: Criminal Procedure Act in the implementation process was widespread evasion and overhead issues. This program has become a failure of the Criminal system, the biggest challenges caused by failure of the Criminal procedure mainly because the Law does not establish an effective procedural sanctions and procedural mechanisms for the referee, some of the legal proceedings brought by the design of the cost of inputs beyond the maximum tolerance of the judicial system, the investigators in order to avoid adverse results of the exam had to take the initiative to avoid certain legal proceedings Some programming because of conflicting legal traditions by the impact of the emergence of self-contradictory situation. Moreover, the existing Criminal justice system is also derived from the West for many of the effective implementation of program design, constitute a "bottleneck effect . "


Fourth, the benefits of compliance with program losses

In any society, the strict Law-abiding people should be encouraged, at least not because of compliance with the Law and suffer the loss of interest, which is a self-evident truth. Similarly, for those engaged in the investigation, prosecution and trials of officials, strictly comply with legal process should also achieve significant benefits for himself, or at least should not be a punishment, which is self-evident principles of justice.

However, China's Criminal procedure Law in the implementation process in the face of a prominent issue, but because of management by objectives and performance appraisal system exists, police officers, prosecutors and judges sometimes suffered because of strict compliance with legal interests of the losses, Due to the impact of existing national compensation system, the public security organs, the prosecution and the court proceedings because of compliance with civil liability, and thus be adversely affected if the investigators not only does not comply with legal process and gain from the actual benefits, an interest but have to bear the loss, then they would not have been implemented to ensure that the inherent legal power, the same, if only because the investigators made the decision to be overturned, we must bear the adverse results of the exam, then they In order to avoid the results of this assessment, it will not take all the modifications for the practice of Law, even at the cost to avoid the criminal procedure law itself, which belongs to the third law of legal failure.

A strict compliance with legal proceedings by the investigators usually do not encourage or reward. Or punished by the loss occurred in the case of investigators because of his decision or action made by a judicial decision to be overturned, and by adverse "performance evaluation . "In other words, as long as the decision or ruling made the results were declared" wrong ", then the investigators even if strict compliance with the legal process, but also suffered adverse or even evaluation of direct punishment. Thus, this" performance assessment 'system has two significant features: First, in the three organs of public security in the assembly-line litigation, the latter organization made the decision on the case, will determine the decisions of the previous body of "correctness "In the case between lower courts on the transfer process, the higher court made a final ruling on the case, directly determines the lower court ruling made the conclusions of the" correctness ", and the second, the investigators complied with the law even if program, but as long as the referee made the decision or conclusion has been declared as "wrong", there may be loss of interest. This performance appraisal system led investigators to avoid adverse performance evaluation results, and take the initiative to circumvent the law under the proceedings.

Currently, almost all levels of local courts to develop a "quantitative regulations target" and "annual performance measures", "concluded the number of cases", "settlement rate", "appeal rate", "complaint complaint rate", "higher Court Development and Reform Commission (remand and revision rate "," conciliation rate "," extended closing number, "etc., are all the more important indicators of quantitative management and assessment [1] For example, according to a grass-roots courts to develop a" trial the annual assessment requirement ", in accordance with the provisions of the Office of the hospital closing index tasks," concluded a super plus 0.8 points, closing a reduced 0.8 points deducted, "the appeal of criminal cases within 10% rate control, and can be 2 points, "this Court and the higher authorities throughout the year without complaint, the complaint, plus 1 minute", the second instance back to the commuted rate was controlled at less than l%, plus 2 points, no cases commuted back, plus 2 points ... ... [2]

The points mentioned here and points directly with the investigators the results of performance appraisal has very close ties, and the performance results ranging from the impact the judge's year-end bonuses, appraised hit first, while in effect the judge's reputation, image and future promotion, even in extreme cases, the assessment concluded a judge may decide whether to act as judges for the problem. Since the points means that the conduct of the trial judge's award, while the points means that some degree of punishment , then, whether these assessment indicators for the trial judge's behavior which lead role?

First, "concluded the number of cases", "settlement rate" and "extended the number of ad litem" has become the standard assessment will guide the judge in the unit of time not only to maximize the number of completed cases, but also to pursue in the shortest possible time as much as possible in the case concluded this would indeed encourage judges to reduce unnecessary delays, improve efficiency in handling cases, but if the judge in order to meet these standards for assessing inappropriate actions taken, then the trial efficiency and the cases closed rise, it is possible to bring down the quality of the trial, the court is more likely to encourage strict compliance with the law is no longer the proceedings, we can ask about: Code of Criminal Procedure required to prepare defense before the trial, witnesses, prosecution and the defense cross-examination, defense counsel the right to protection, the courts review the legality of acts of investigation and the exclusion of illegal evidence, etc., exactly what one would help improve efficiency and increase the settlement rate it?

Second, the "mediation rate" and "withdrawal rate" of the assessment indicators in the case of private prosecution and may be included in civil cases is very important. This mandatory "mediation settlement rate" and "party withdrawal rate case" approach, no doubt will lead the judge to maximize the pursuit of non-litigation to resolve the case, but both parties to accept mediation or withdraw the prosecution, which are "right of appeal" within the scope of choice, the parties to exercise these options need to be informed and voluntary as a precondition, Otherwise, a departure from the laws of the mediation and the withdrawal of the original purpose of the system in a judge to make reasonable efforts are still unable to mediate successfully, it is difficult to convince the parties to withdraw the prosecution's case, the case through the formal conclusion of the trial proceedings, which should be understandable the while conciliation rate and withdrawal rate of target setting, filling the judge to withstand the pressure of examination results, and both parties have to influence, induce or pressure in order to bring the two sides as far as possible to choose non-litigation dispute resolution. This forced the judge, "Yan Miao encourage" assessment mechanism, often resulting in the kind of "forced mediation" and "sub-pressure adjustment," or even "coercion withdrawal" phenomena, and, finally, by law and the withdrawal of the mediation process is difficult be implemented.

Third, the "second trial the rate of Development and reform," the existence of indicators, usually prompting a judge to reduce the second-instance court of first instance and remand the case commuted, and the choice of a variety of alternative approaches, for example, the first instance the judge of first instance for cases that have not yet closed, take the initiative to second-instance court judges to "consult" and "report" in order to get the latter case the referee concluded that clear instructions to make a ruling in accordance with such instructions, which makes the first instance decision had reflected the will of the judge of second instance and opinions. This occurred in the lower courts on the internal communication between the practice of direct appeal and protest the system overhead, resulting in the so-called two final pre-trial system in name only, the lower court also difficult to maintain at least between the internal and independent.

As prosecutors and public security organs, a similar quantitative management and assessment mechanism, there will also encourage investigators, arrest and prosecution personnel in order to obtain a more satisfactory quantitative assessment results at the expense to avoid legal proceedings, to take some of the violations of criminal procedural law of the alternative approach, for example, according to a grass-roots Procuratorate formulated the "quantitative management objectives and assessment methods", for the prosecution of the case, "the court acquitted by the court to confirm the review right" to review the prosecution of the responsible prosecutors "a class of errors in mind, by 6 points," the case for the approval of the arrest, "after being arrested for statutory non-prosecution, doubt not to prosecute, back office, was acquitted, investigation and supervision department responsible" To examine the arrest of the prosecutor, "recorded a class of errors, by 6 points" for their own investigation of the prosecution case, "made after filing off the case, not to prosecute processing, or found not guilty", to be responsible for the investigation of prosecutors "a class of errors in mind, by 6 points" ... To be clear, "a class of error" are among the most serious "mistake" and "minus 6 points" is among the most severe punishment. [3] Not only that So far, almost all local prosecutors are on the detection rate, the filing rate, not to approve the arrest rate, not to prosecute (particularly after the arrest rate of non-prosecution made almost harsh restrictions, and has built a diverse and complex plus points and minus points of the index system.

This quantitative management and evaluation mechanism for the prosecution to comply with legal problems had a negative impact.

First, the detection rate of specific target, often forcing investigators to take alternative methods of investigation activities, particularly given to the prosecution in the investigation of corruption, bribery and dereliction of duty cases, the process of the case, the use of investigative techniques that can be very limited, including monitoring, tracking, Encouragement, secret video, including a variety of "secret techniques of investigative techniques," still belonging to strictly limit the use of investigative methods, investigators also had to over-rely on the kind of original "pre-trial interrogation" means, Therefore, the so-called "alternative" methods of investigation of violation of the law is nothing more than pre-trial interrogation methods.

Second, "not to approve the arrest rate" and "not to prosecute rate" by the clear limitations, as well as those who do not exceed the number of arrests and prosecutors not to prosecute the negative assessment made by the results, will lead to arrest and prosecutors to minimize non- not to prosecute the applicable rate, which will no doubt result in arrest under the law approved by the system and do not avoid prosecution system in fact, artificially limit the prosecution not to prosecute does not apply to arrests and the ratio of background, many have been in line with statutory non-arrest, not to prosecute the case conditions are made to approve the arrest, prosecution decisions, which in itself brings arrest and prosecution procedures pending issues.

Third, both for investigators to review the arrest or prosecution staff officers, was undoubtedly the greatest impact assessment index number of the court's guilty verdict and the applicable rates, of course, arrest for investigation and review of personnel, the prosecution once the dismiss the case, the decision not to prosecute such innocence, will bring the same negative assessment of the results.

To the court acquitted an example to date, the court if a case is prosecuted to acquittal, prosecutors responsible for prosecuting the higher offices in the organization's assessment rating will be in a very disadvantaged position, the Procuratorate The Attorney General or face poor performance evaluations, or career prospects will be adversely affected on while on the prosecutor to prosecute individuals responsible for the review, the range of negative evaluation and the impact can be said to be "overwhelming rolling." The prosecutor will certainly have been a variety of review, this should be repeated to write reports, and to this Court of performance appraisal, discipline inspection and supervision departments to explain, or even accept a higher level review of the prosecution, This is just a more direct consequences, while as an indirect consequence, the prosecution is likely to hit the prosecutors singled out, cancel the first opportunity to record their appraised, promoted the use of the no priority, even where the functions transferred [4]

Since the processing of cases once they are made innocent, responsible for the investigation, arrest and prosecution of the prosecutors would accept the extremely unfavorable examination results, then, these prosecutors for a "not guilty according to law shall be handled in accordance with" cases, will stride to comply with legal process, and the passive acceptance of a guilty verdict results?

In order to avoid cases of acquittal was made, many prosecutors will instinctively exert influence and pressure the judge, and to take a variety of private communication, contact and persuade the action in China's current judicial system, the criminal division of the court judge and the prosecutor's Procuratorate at the same level, almost formed a very close "colleague" relationship. Sometimes, prosecutors and judges may also produce a variety of interests, a certain "community of interests." This is hard institutional flow of the judicial system, a judge, even for those "facts are unclear and lack of evidence" cases, it is difficult to be acquitted. Otherwise, it is "do not give prosecutors face", "undermining the prosecutor's reputation." the behavior of the judge not only so offend a prosecutor, or even by the local political and legal circles as the "alien." Of course, in some relationship with the judge's Procuratorate, local rigid, prosecutors may also be because a judge acquitted, And that means a judge of criminal prosecution to investigate alleged bribe-taking behavior, which of course is an extremely rare situation, the probability of occurrence is not high, but the prosecution as a "legal supervision" theory is criminal prosecution of judges to take action.

In more cases, in case of "facts are not clear, the lack of evidence", and the courts often do not acquitted, but prosecutors recommended to withdraw the prosecution, or directly in accordance with "suspected lighter" principle, to make "leeway" in playful ruling even if the second instance court, forced the prosecution and the impact of the lower court, will not easily make a not guilty ruling, but a large number of application "cassation, remand," the ruling means . In the case was sent back to lower court, the court or to allow the determination of a nolle prosequi, or a lighter sentence, after all, such a ruling means prosecutors will avoid the court acquitted and the adverse results of the exam, but also prosecution to avoid the consequences of under state compensation in recent years occurred in some of the significant impact of the case, as the case of Du Peiwu Yunnan, Hubei SHE case, Hebei Chen Guoqing and the case, [5] have shown that the referee on the logic is there, but In the application of a certain universality.

In most cases, the court, for "the fact is unclear, the lack of evidence" cases, not clearly defined in accordance with the Code of Criminal Procedure, to make a "lack of evidence, the charges against the acquittal can not be established", but adhering to the " Doubtful lighter "logic to make" leeway''the guilty verdict, or to allow the prosecution to withdraw the prosecution to make a ruling, which of course is "suspected of innocence" rule is to avoid the typical example, but the cause of this an important reason for the program failures, but also in the earlier analysis of the quantitative management and performance appraisal system, making the prosecutors because the court's guilty verdict and the loss by a variety of interests, but also make the higher court of first instance judge Court commuted the innocent be adversely affected. may, either prosecutors or judges, even if fully aware of the importance of a legal, but in the current quantitative management and evaluation mechanism, once aware of the strict compliance with the law program will result in loss of their own interests, it may take a variety of avoidance proceedings, the legal system overhead action prosecutors and judges are not deliberately to cause the failure of the criminal procedure of the situation, but in order to avoid negative evaluation results, and had These investigators to avoid is not only useless but harmful to the proceedings.

Fifth, the two legal traditions of the game

In China's current criminal procedure law and relevant judicial interpretations, frequently there are some contradictory system design. Sometimes, legislators established a new system, the Supreme Court, Supreme Procuratorate subsequent judicial interpretation was issued, but also to establish a number of competing with this system, so that the judicial practice in the former are subject to different degrees of digestion and to avoid, while in other cases, lawmakers from the West and transplant some of the system, with some effective There is a direct criminal policy conflicts, and these criminal policies and the handling of the three organs of public security has a direct role in guiding activities, and even into workable rules of procedure, which will result in failure of the legal system.

"Suspected of innocence" rule of failures is a persuasive example of original, 1996, revised in accordance with the provisions of Code of Criminal Procedure, Court of First Instance found insufficient evidence in the case, can not be found guilty, it shall make " lack of evidence, the alleged offender can not be established in acquittal. "It seems people in the legislative decision-making, this" suspected of innocence "rule was set up to" absorb the presumption of innocence in a reasonable portion "of an important manifestation of [6 ] But, intentionally or unintentionally ignored the choice of the legislators in the same Code of Criminal Procedure still retain the original "hanging from the suspected crime" rule: on the one hand, in the event the case, "the fact is unclear, the lack of evidence "The circumstances, prosecutors may suggest postponing the trial court for additional investigation, on the other hand, the second instance court case," the fact that the original sentence is unclear or insufficient evidence "of the situation, you can find out after the fact" commute "can also be decision to dismiss the verdict, the trial court to re-hear back, we can ask this: Since the law clearly required in case of unclear facts, insufficient evidence, the court shall be in accordance with the concept of presumption of innocence, to make accusations can not be established in acquittal , then, why should legislators allow the prosecution in the court during the supplementary investigation it? court of second instance for such cases, why not make a guilty verdict, but remanded it? this "crime suspect from the hanging" system design, by nature because the defendant repeated the same conduct by criminal prosecution, which is incompatible with the concept of presumption of innocence.

After the implementation of the Code of Criminal Procedure, the Supreme Court, Supreme Procuratorate then developed to implement the judicial interpretation of the law under which judicial interpretation, prosecutors in the trial court found facts of the case is unclear, evidence insufficient, you can apply to the court "nolle prosequi", the court shall be approved by the review, you can make a "decision to allow withdrawal of prosecution." The prosecution in the withdrawal of prosecution, the investigation can continue to add, and then re-prosecution, can also be made not to prosecute or recommended decision to dismiss the case the public security organs. It should be said, the Supreme Court, Supreme Procuratorate in the establishment of "nolle prosequi" system, the Code of Criminal Procedure did not get a clear mandate, is a departure from the principle of presumption of innocence. This "nolle prosequi" implementation of the system, a direct result of "the Conflict" by the rules to avoid and set aside. After all, according to the preceding analysis, the existing performance appraisal system under the influence, to make a guilty verdict when the court, the prosecutor responsible for the prosecution will be extremely negative evaluation, even the Public Prosecutor's Office have their own subject to certain implicated, which clearly shows that legislators in the introduction of "the Conflict" rules, if the law and judicial interpretation, there are still some rules and practices contrary to this, then this rule is not the effective implementation of .

Deeper point of view, the introduction of some new failure of the proceedings reflects the conflict of two legal values ​​in recent years, with the legislative decision-makers, judicial officials, lawyers and legal scholars increasingly accept the Western criminal justice experience and ideas, change and judicial interpretation of the Code of Criminal Procedure of the Development of absorbing more and more programming from the West, but at the same time, the local law in the traditional "strong resistance", these programs from the West design almost all face "acclimatized" problem, and eventually replaced by a variety of hidden rules. In fact, "the Conflict" the reason being to avoid the rules, meaning that emphasizes protection of the defendant the presumption of innocence and the state prosecution under the against the concept of rational agency, and ultimately did not achieve real acceptance of legislators and the judiciary, while both the legislators or the judiciary who still believe in as long as the defendant "in fact constitute a crime", it should not go unpunished, even if the evidence in the case insufficient, the court should also ensure that the "net of justice, but not loose."

In this regard, the defendant's voluntary confession is a question worthy of serious study examples.

In theory, voluntary confessions rule has been generally accepted legal circles. Accused has the right to defend the principle has been established in the Constitution and Code of Criminal Procedure into The existing Code of Criminal Procedure establishes the defendant in the status of the parties and the right to defense is also strictly prohibited to torture, threat, inducement, fraud and other illegal methods to collect evidence. The Supreme Court and the Supreme People's Procuratorate of judicial interpretation is further stipulates that all through torture, threats, inducement, fraud and other illegal methods to obtain the confession of the accused, witness statements, victim statements, both the prosecution and the court's Procuratorate shall be finalized as the basis, while Judging from the current study, the majority of scholars have advocated the establishment of "no one shall be compelled self-incrimination" principle, to establish a right to remain silent as the core of the voluntary confessions rule this end, some scholars have suggested that investigation and interrogation system reform, requirements for pre-trial interrogation of time, place, and make clear the number of restrictions, even advocated the establishment of defense counsel during the interrogation in the investigation of the presence of the right, while both the Supreme People's Procuratorate or the Ministry of Public Security, are introduced within a certain range, or prepare for the full audio and video recording system, allowing investigators to question suspects the whole process can be objectively recorded. It should be said, this series of reform initiatives will undoubtedly confession of the accused's voluntary and non-compulsory to get a degree of protection which kinds of Western-inspired legal system reform ideas are being accepted by the majority of Chinese legal scholars.

However, statements by the defendant on the issue, how judicial practice, what are the rules? China's unique system of closed pre-trial investigation to determine the innocence of those who remain silent or to adhere to defend the suspects, are vulnerable to long continuous pre-trial interrogation, disguise this fact with the "confessions" means, and, because the suspect to remain silent or to adhere to innocent excuse, investigators handling the case will be extended the corresponding time, which will bring the extension of custody pending. In the trial stage, the suspect in the investigation stage to remain silent, insist innocent excuse, and refused to confess guilt of the defendant in court cases together, there could be transformed into "attitude evidence", as the court of the defendant severely direct basis for sentencing in recent years than most typical case of the former vice governor of Anhui Province Wang Huaizhong case the court verdict in the death penalty for Wang Huaizhong, the main reason is that the referee, "the defendant Wang Huaizhong conclusive evidence ... in the face of all sorts of sophistry , pleaded not guilty, extremely bad attitude, should be punished according to law. " [7] and this will be "pleaded guilty" as an aggravating sentencing decision based on logic has been recognized by the Supreme Court [8] which to some extent, shows that the so-called "resisting strict" in practice has changed to "defend strict." suspects and defendants for exercising their right to defense and to bear the adverse legal consequences, or even punished. This is clearly the party with the defendant's position, qualifications and the subject of proceedings shall enjoy the right to defense out of tune. [9]

Why are legislators on the one hand stressed the suspect, the defendant has the status of the parties, and gradually expand its right of defense, on the other hand retained such as "investigators suspect the question should be answered truthfully," such a requirement? In accordance with the exercise of the right to defense basic logic, since the court to respect the right of the defendant's defense, it should protect the right of the defendant's innocence, or at least should not, because the defendant pleaded not guilty to the exercise of the right to be punished, but why Chinese courts also generally be "pleaded guilty" as severely the basis for sentencing?

In fact, this paradox of programming and judicial practice, fundamentally reflects the Chinese legislators and the judiciary to treat suspects and defendants status ambivalence. The defendant in criminal proceedings as the main parties, their legal status has dual nature: on the one hand, as a party, suspect, the defendant has an independent human dignity, to enjoy the right to defense as the core of the right of action, "the defendant's voluntary confession" is thus derived the basic concepts, the other On the one hand, as the parties understand the facts of the case, suspects and defendants by providing relevant testimony, the case can help the public security authorities found the truth, even as other "evidence of the source", "the defendant confessed the truth" is thus leads to an important concept. legislators stressed that the suspect, the defendant's party status and strengthen its defense, which is the subject of proceedings based on its position of respect and to take legislative initiatives. According to this concept, the basic criminal proceedings to maintain "legal form", it is necessary to ensure that suspects and defendants and the state prosecution authorities rational confrontation the suspect, accused only from being compelled self-incrimination, making confession of guilt and innocence defense has the most basic voluntary, this form of action to be maintained, but at the same time, legislators and the courts seems to worry about making the suspect, the defendant has the right to defense is too strong, so that makes confession of the accused in this important evidence is difficult to obtain based on this consideration, it retains the so-called Code of Criminal Procedure, "truthfully answer" rule, making the suspect had to bear "a true account of facts of the crime," the obligation, the court only in accordance with "resisting strict "principle, a defendant who pleaded not guilty should be severely punished.

Today, almost all legal scholars have advocated the establishment of "no one shall be compelled self-incrimination" principle, to establish the defendant's confession voluntary rules of procedural safeguards for the center mechanism, but if this "honest liberal resist strict "criminal policy still exists, if the suspect is still to bear," answered truthfully "obligations, and if the court is still to the defendant" pleaded guilty to bad attitude "as an excuse to make heavier sentencing decision, then the suspect, the accused should maintain the dominant position of litigation is almost impossible. and if the conflict between two legal cultures still exist, then the Chinese Criminal Procedure Law will still be set up on two conflicting rules of procedure, the court will continue to perform two contradictory criminal policy.

By analyzing "the Conflict" and "voluntary confession of the accused" example, we can conclude that such a law: once the rules of procedure established by law there is a paradoxical situation, or the rules and some of the inherent criminal policy clashes, then criminal proceedings will be failures, as long as the laws of those deep-seated cultural conflicts are not effectively addressed, then the criminal procedure law will continue to rise to various conflicts of autocorrelation design.

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Sixth, the judicial system of legal protection

According to the author's analysis of the previous ideas, do not establish a violation of legal procedures to declare invalid the application of the sanctions regime, the criminal procedure law is unenforceable, those who violated the rights of action that is not relief, but some procedural Even if the sanctions regime has been established in the statute, they are facing their own problems to be implemented, for example, under the current Criminal Procedural Law, the court of first instance court of second instance trial for violation of legal procedures, "affect a fair trial", you can do a "cassation, remand," the ruling. This through the "cassation" to sanction violations of the system design proceedings, in judicial practice has not been more successful on the implementation. Again, the relevant judicial interpretations of the Supreme Court, the Court for the investigators to torture, threats , inducement, fraud and other illegal means to obtain the words of the evidence, not as a basis, but this investigation for the illegal acts taken by the procedural sanctions, in judicial practice, there are also generally avoid the problem by [10 ]

Why these two procedural sanctions regime difficult to implement? Almost all criminal proceedings, the implementation depends on the specific role of an effective judicial system as designed to regulate the process of the criminal system of rules, up to the manipulation of the criminal procedure law This judicial machinery of the state authorities, to implement, these programs need to host the national authorities have the appropriate power configuration, but also need to prosecution, the court on the lower level of a reasonable relationship between the mode of fact, the criminal procedure law and judicial system has a "common lot" relationship in the relationship between the three organs of public security problems, lower levels of the judiciary on the relationship between the existence of alienation in the case, almost all legislators designed it is difficult to escape criminal proceedings are to avoid the fate. This is another failure of China's criminal procedure law.

We can again analyze the two aforementioned procedural sanctions regime. Originally, the "cassation," a good implementation of the system, based on a normal basis of two final pre-trial system. In accordance with the idea of ​​legislators, court of second instance trial court not only to the factual findings and application of the substantive law of judicial review, but also to observe the proceedings of the trial court to review the situation, and the behavior of these courts to make procedural violation The law declared by the cassation to declare the invalidity of the results of this decision, and remand for such a program by mistake to be corrected can be said, by the cassation instance court to the court of first instance for violation of legal procedures implementation similar to the penalty of sanctions: The declared illegal, its illegal for public condemnation by declaring invalid, the implementation of a retribution for the offense, through remand, deter and prevent illegal activities, but China is currently the top and bottom there are abnormal levels of courts the relationship between lower courts on the "internal independence" can not be maintained, the lower court there was a similar between the upper and lower levels of the executive authorities, "the order from the", "vertical leadership" relationship in the context of this system, the lower courts and higher courts on specific cases, consult the report for internal communication and the situation has gradually become a kind of judicial practice. Once this first instance decision directly reflects the will of the court of second instance occurs, the parties to the appeal meaningless, two final pre-trial system will become in name only so that even if the defendant and defense counsel on the Court of First Instance of the "procedural violations" raised an objection, even as an important ground of appeal, court of second instance often ignored, continue to make upheld the ruling.

If the "cassation" system needs to have a normal trial-level court system and the internal and independent mechanism to protect, then, the implementation of the illegal evidence exclusion rule, depends on whether the court the legality of acts of investigation the judicial authority review, depending on the "principle of justice the final award" was established. As a general explanation, the court investigators illegally acquired evidence be excluded, which means a declaration of the unlawful nature of the investigation, declaring this illegal act null and void, but also declared unlawful by this act do not have the evidence to obtain evidence of ability that acts against the legitimacy of judicial review of the investigation, constitutes an illegal evidence exclusion rule to apply to the premise of the system. Only in this way also, the court can exclude illegally obtained evidence, to effectively curb the phenomenon of illegal investigation, the court declared the last bastion of the role of justice, avoid the adoption of evidence of an illegal investigation of illegal acts "accomplice" or "accomplice" of the fate of the . However, according to China's current judicial system, up through the administrative court proceedings, the public security organs of the review the legality of administrative punishment, and for the public security organs, the prosecution of the criminal investigation actions, the court there is no way any form of judicial review . Criminal justice practice in China, whether it is search, seizure, identification, inspection, inspection and other special investigation behavior, or detention, arrest, bail and other coercive measures, are not subject to court review the legality. The defense of these acts, even to challenge the legality, the court generally inadmissible. In this case, the prosecution case the evidence of a defendant to challenge the legality of the occasion, the court rejected most. In some rare cases, the court even if admissible, is also up for a formal review of the court and it can not request the Prosecutor to undertake "an investigation to prove the legality of acts of responsibility," can not effectively promote the investigators to testify, but investigators generally accepted proof of its investigation to submit a written description of the legality of acts can be said that the court can not act on the legitimacy of judicial review of the investigation, is indeed caused by the illegal evidence exclusion rules to avoid important reasons.

Sanctions regimes of the two procedural failure examples, showing that in a lot of behind the modern rules of criminal procedure, in fact, there is a shadow of the judicial system. Unfortunately, legislators and the judiciary in China learn these rules of criminal procedure and transplantation time, or suffer from difficult to change China's special judicial system, or the formation of this point there is no deep understanding of the often overlooked that these rules of procedure sufficient to ensure the effective implementation of the judicial system factors as a result, certain procedural rules from the West been established in the statute, the judicial system due to the Qianche, often become difficult to implement and is not operational.

In 1996 the legislature of the suspects in custody lawyer design of the system, is a worthwhile example of the idea according to legislators, meeting with lawyers in the investigation stage, the suspect in custody, as soon as possible understand the circumstances of the case, for the full court defense on the preparation, forensic investigators in law have some deterrent, however, lawyers are to meet with the suspects in the "custody" status, which is in detention centers pending custody by the public security organs in China's current judicial system, a large Most criminal cases are responsible for the investigation by public security organs, the public security organ for investigation of these cases, while in the exercise of the right and the right to custody pending. In both the concentration of power exercised by the public security organs in the case, lawyers to successfully meet the suspect in custody, will have the functions of the department of public security organs as a detention center application at the meeting. In most criminal cases are responsible for the investigation by public security organs的体制下,看守所对律师的会见势必也会施加各种限制,如动辄设立阻碍律师会见的设施,对律师与嫌疑人的会谈进行窃听或者秘密录音等.不仅如此,现行刑事诉讼法要求律师会见在押嫌疑人必须取得侦查部门的批准.而这种会见申请一旦遭到拒绝,律师也只能向侦查机关提出救济的要求,而无法向法院提出任何形式的诉讼请求.在中国现行司法体制下,法院并不参与侦查阶段的诉讼活动,检察机关也只是对侦查部门的逮捕申请进行审查和批准,而对于侦查部门限制律师权利的行为并没有施以救济的权力.这样,律师申请会见嫌疑人的权利也就变成"申请侦查机关批准会见"的权利.

不难看出,律师会见在押嫌疑人的权利之所以变得难以实施,至少是因为现行司法体制已经成为律师会见制度的"瓶颈"因素.很显然,在侦查权与羁押权集中由公安机关行使的制度下,律师的会见都要取得公安机关的批准,而在法院并不参与审判前诉讼活动的制度下,律师不仅要向侦查部门申请会见,而且还不得不向侦查机关申请获得救济.这两个司法体制上的因素如果继续存在的话,那么,不论立法者对律师会见问题作出怎样的制度设计,律师会见所面临的困难都将会继续存在.或许,我们在继续推行那种以扩大辩护律师权利为核心的诉讼制度改革的时候,需要进行深刻的反思:为什么立法者授予的"律师会见权",在司法实践中却普遍变成了"律师申请公安机关批准会见权"?

迄今为止,法学界对于中国刑事诉讼制度的改造设想,几乎都是以"司法终局裁决原则"为前提预设的.也就是说,绝大多数法学者都认为,所有涉及剥夺或者限制个人人身自由和其他基本权利的诉讼行为,都需要由作为"中立裁判者"的法庭加以授权,任何受到诉讼侵权行为侵害的嫌疑人、被告人也都需要向中立的法庭申请司法救济.这就需要建立审判前的司法审查和令状主义制度,确立中国式的"侦查法官"、"预审法官"甚至"治安法官"制度,也需要建立一种旨在确保侦查行为和公诉行为接受司法审查的现代司法裁判制度.可以说,无论是强制措施的改革还是强制性侦查行为的法律控制,无论是证据展示制度的建立还是非法证据排除规则的实施,都需要建立在这种司法裁判机关的强力介入之下.

然而,按照中国现行的刑事司法体制,法官并不参与刑事审判前的任何诉讼活动,而只是在受理检察机关提起的公诉案件之后,对案件的实体问题作出权威的裁判.这就注定在整个审判前的诉讼阶段,嫌疑人、辩护律师只能在没有"中立裁判者"参与的情况下展开各项诉讼活动,无论是拘留、取保候审、监视居住强制措施,还是搜查、扣押、查封、冻结、勘验、检查、鉴定等侦查行为,都是由侦查机关自行授权和自行实施的.整个侦查程序难以形成一种最起码的"诉讼形态",而不得不具有"行政治罪"活动的特征.不仅如此,现行刑事司法体制并没有建立一种针对诉讼程序的合法性进行司法审查的机制,使得法院即便在审判阶段也难以对侦查行为的合法性进行有效的司法审查,更无法对那些明显属于重大程序违法的侦查行为和公诉行为,做出诉讼行为无效之宣告.这也就注定了非法证据排除规则难以实施,甚至就连控方证据的"证据能力"或者"可采性"之类的概念,也只能存在于理论设想之中,而难以在司法裁判中有切实的意义.事实上,假如就连侦查行为的合法性都不接受任何司法审查的话,那么,控方所提供的证据是否具有"证据能力"或"可采性"的问题,又有什么意义呢?

问题还远不止这些.按照现行的刑事司法体制,检察机关作为国家的"法律监督机关",有权对侦查和审判活动的合法性进行法律监督,并对违反法律程序的诉讼行为加以纠正.这就意味着法律赋予了检察官维护刑事程序法实施的权威.然而,检察机关作为国家公职人员犯罪案件的侦查机关,本身就在行使侦查权,检察机关作为国家公诉机关,本身就与刑事案件有着职业上的利害关系,有着追求有利诉讼结局的基本欲望.这显然说明,这种授权检察机关维护程序法实施的制度设计,存在着天然的缺陷和不足.而在这种司法体制不发生变革的情况下,法学界要期望引入源自西方的司法审查、令状主义和司法救济机制,奢望法院在维护司法正义方面成为"最后一道堡垒",这岂不是痴人说梦！

VII Conclusion

在本文的讨论中,笔者从五个方面解释了造成刑事程序失灵的基本原因,并提出和论证了与此相关的"五个定律".当然,这种讨论和论证都是初步的,都是透过对一系列具体程序规则被规避和架空的例子,从中归纳出来的几个基本"假设".要对这五项定律进行全面系统的论证,我们还需要进行更加深入的实证考察,使得刑事程序失灵的结果与五个因素之间的因果关系得到更加令人信服的揭示.不过,目前的分析和论证至少可以使我们透过刑事程序被规避的现象,找到那些不会随着立法的变化而轻易发生变化的"深层结构",从而揭示出刑事程序失灵的普遍规律.从这一角度上说,这一初步研究仍然是富有意义的,也可以成为以后进一步研究的先导.

所谓"刑事程序的失灵"问题,其实也就是侦查机关、公诉机关和法院规避法律程序,致使刑事程序法无法得到实施的问题.当然,在正式的法律程序受到规避和架空的同时,司法实践中真正实行的却是一系列非正式的潜规则.为什么侦查机关、公诉机关和法院拒绝实施正式的法律程序?这首先是由刑事程序法本身不具有可操作性和可救济性所造成的.在刑事程序法没有建立那种针对程序性违法行为而适用的程序性制裁体系,在法院对于涉及侦查、公诉和审判行为的合法性问题拒不进行司法审查的时候,那些涉嫌违反法律程序的侦查行为、公诉行为和审判行为,既无法受到有效的司法审查,也无法被追究相应的程序性法律责任.

刑事程序的失灵还与某些程序规则的设计会带来过于高昂的代价有着密切的联系.我们已经通过分析合议制和审判方式改革的例子,论证了这样一个道理:不考虑程序设计所带来的诉讼成本问题,使其超出公检法三机关所能承受的极限,那么,这种改革最终将变得难以实施.这足以提醒我们:无论我们将怎样的法律价值奉为司法改革的目标,都需要考虑这种改革所带来的成本投入问题,也要认真地对待侦查机关、公诉机关和法院的承受力问题.

通过分析各种刑事程序的失灵问题,我们还发现了不同司法传统的冲突这一外生变量.无论是"疑罪从无"还是"被告人供述的自愿性"问题,都显示出那些来自西方的程序设计已经变得无法得到实施,而一些来自中国本土传统的制度安排则以"潜规则"的形式在大行其道.事实上,只要一部法律所确立的规则违背了司法实践中存在的主流价值观,那么,这种规则无论是从哪种法律制度移植而来的,都不具有实施的可能性.

司法人员之所以规避某些刑事程序,是因为遵守这些程序规则会造成他们的直接利益损失.本来,按照刑事程序法的制度设计,侦查人员、公诉人员、审判人员都不应与案件的结局有着直接的利害关系,否则,他们就都属于被申请回避的对象.但是,公检法三机关内部业绩考评制度的存在,却使得在刑事司法程序运转过程中,后一机关对案件的实体处理结果直接决定前一机关是否办成了"错案",并因此影响前一机关的业绩考评结果.这种以后一机关的实体处理为标准的业绩考评制度,造成公检法人员将追求某种有利的考评结果作为诉讼活动的目标,而根本不会保证法律程序的实施,甚至这种有利结果的取得本身就是通过架空和规避法律程序实现的.

最后,现行司法体制的限制成为导致刑事程序失灵的又一制约因素.不建立某种旨在合理调整侦查、公诉和审判机关法律关系的司法体制,那么,很多源自西方的程序设计就没有得到实施的制度基础.目前,司法体制已经成为制约刑事诉讼制度改革的瓶颈因素,没有司法体制的大幅度改革,刑事诉讼法的修改已经失去了空间.而一些基于某种司法理想所确立的程序规则,也由于缺乏司法体制的保障,而最终受到普遍的规避.

很显然,相对于推进刑事诉讼立法完善和刑事司法改革而言,解决刑事程序失灵的问题已经属于当下的首要课题.对于运用社会科学方法研究法律问题的学者来说,刑事程序失灵问题可能难以成为提炼中国"法制经验"的根据,却仍然可以成为人们总结程序法制教训的最佳样本.对于那些有志于推进中国法制现代化的法学者来说,在选择将哪些西方法制引进中国刑事程序法之前,需要扪心自问:这些制度设计真的能得到实施,而不至于被彻底规避吗?




Notes:
[1]有关法院审判质量管理的问题,参见曲颖:<<法院人员分类管理的若干问题——现有制度框架内的考量>>,载<<当代法官>>2006年第6期.

[2]这是笔者2006年在江苏某基层法院进行调研时所获知的针对审判人员的年度考核标准.

[3]这些考核办法是笔者2007年3月在北京某区检察院作调研时了解到的.

[4]笔者在某基层检察机关进行调研时,曾专门分析过两起法院作出无罪判决的案件.在第一起案件中,某检察官接受检察长的指派,担任某一案件的公诉人.该案件曾经过检察委员会的讨论,被认为"铁定要判无罪",检察长对公诉人承诺说:"判了无罪不是你的责任".法院作出无罪判决后,尽管该检察院并没有对公诉人作出不利的决定,但是,该检察官还是受到了上级检察院的反复审查,尽管最终没有认定她"负有责任",但还是要求暂停该检察官的评优创先的机会.而在另一起案件中,某主诉检察官在没有向公诉处长、主管检察长汇报的情况下,决定对一起故意杀人案件提起公诉.案件最终被法院以"构成正当防卫"的理由作出无罪判决.检察认为法院的判决存在错误,一度建议上级检察机关提起抗诉,但抗诉最终被上级检察院撤回.随后,经过多次反复的审查,该主诉检察官被认定在案件被作出无罪判决方面"负有责任".检察院对该检察官的处理决定是:调离原来的公诉岗位,充任简易程序案件的公诉人.

[5]在云南杜培武案件中,被告人杜培武在被认定杀害两名警察、其中一名被害人还是县公安局副局长的情况下,竟然被云南高院判处死缓.在湖北佘祥林案件中,被告人佘祥林被认定"以极为残酷的手段"杀害了自己的妻子,却被湖北高院两次以"事实不清"为由,撤销原判,发回重审,并最终被当地一家中级法院判处15年有期徒刑.当然,这两起案件最终都被改判无罪.而在河北陈国清案件中,被告人陈国清等被认定犯有抢劫、杀害两名出租车司机的罪行,却在河北高院连续多次发回重审、当地中级法院连续作出死刑判决的情况下,最终被判处死缓或者无期徒刑.有关这些案件的详细分析,参见参见陈瑞华:<<程序性制裁理论>>,中国法制出版社2005年版,第1页以下、第360页以下.

[6]顾昂然:<<立法札记——关于我国部分法律制定情况的介绍>>,法律出版社2006年版,第511页.

[7]参见<<山东省济南市中级人民法院(2003济刑二初字第32号判决书>>,载<<刑事审判参考>>(总第35集,法律出版社2004年版.

[8]根据最高人民法院的认定,"在一审期间,王怀忠拒不认罪,在二审期间,王怀忠对其所犯大部分罪行予以供认,但对有确凿证据证明的其他犯罪事实仍予以否认,不足以从轻处罚".参见<<最高人民法院(2004刑复字第15号刑事裁定书>>,载<<刑事审判参考>>(总第35集,法律出版社2004年版.

[9]有关被告人口供自愿性问题的反思性评论,参见陈瑞华:<<问题与主义之间——刑事诉讼基本问题研究>>,中国人民大学出版社2003年版,第七章.

[10]对于"撤销原判"和"非法证据排除规则"的实施问题,参见参见陈瑞华:<<程序性制裁理论>>,中国法制出版社2005年版,第235页以下.

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