【作者】 刘仁琦；

【导师】 闵春雷；

【作者基本信息】 吉林大学 ， 刑法学， 2009， 博士

【摘要】 刑事诉讼活动实质上是发生于国家与个人之间的一种权益冲突。由于国家与个人力量的悬殊,必然要求建立科学的刑事司法程序,一方面要限制国家刑事司法权的膨胀和刑事司法手段的滥用,实现国家权力的自我抑制;另一方面要赋予被告人充分的防御权利,借以抵御国家权力的侵犯。刑事诉讼法不仅为个人与国家进行理性对抗提供了条件,更重要的是对参与刑事诉讼的国家司法机关和司法人员进行了各种权力的限制。我国的职权主义诉讼模式对曾经日益恶化的刑事安全形势以及社会秩序的稳定、有序发挥了积极功效。但也应当看到,职权主义模式突显打击和控制犯罪、维护社会公共利益与安全的目的,追求实体真实的发现,倡导犯罪控制和犯罪惩罚的刑事政策,其一味追求诉讼效率而不惜弱化刑事被告人的程序性权利。因此,这种模式下,程序正义的独立价值没有得到充分地注意与尊重,这不但削弱了程序的正当性,也严重侵犯了被告人以及其他刑事诉讼参与人的诉讼权利。这一现实的前提之下,我国法院变更指控罪名的发生率极高,对被告方的辩护权也存在实质的侵犯。因此,为缓和司法效率与司法公正之间的矛盾,我国法院变更罪名制度有其继续留存的必要性,但为避免上述情形发生,应对我国的法院变更罪名进行理论的重构与制度的革新。刑事诉讼客体理论正是法院变更起诉罪名应遵循的理论基础所在,对基础问题的研究深入与否直接关系到变更罪名时能否克服弊端。刑事诉讼客体的单一性与同一性是法院变更罪名的前提与根基,单一性与同一性标准的确定与适用是法院变更罪名的核心所在。同时,法院变更罪名也是世界范围内的普遍问题,应以本国司法制度、法律传统等现实因素为基础,并从其他国家的制度设计中找到灵感,以期能够建构一套适合我国的法院变更指控罪名的制度,并使其在立法与司法层面都合理、合法。更多还原

【Abstract】 The general objective of criminal proceedings is to counterpoise the interest of country、society and criminal suspects、defendants, which is to ensure the fairness、humanity and rationality in criminal proceedings.The value orientation of criminal proceedings reflects the attitude of a country at a certain period about the choice when substantive justice and procedural fairness conflict and when the crime control and the protection of human right conflict,and at the same time,the context of criminal proceedings also reflects the civilization level.After the amendment of the Code of Criminal Procedure in 1996, the trial proceedings have changed a lot.A trial mode with chinese characteristics is gradually forming and improving.However,because of the omission in the program design、system conflict、the lack of supporting measures and so on,our criminal trial proceedings needs a reform and integration. Changing the charges in the court is one of the systems that should be reformed.The rate that the court changes the charges that the authority accused is quite high,and the defense rights of defendants are irrupted.In order to ease the contradiction between the judicial efficiency and justice,the system which changes the charge should also continue to exist, but the system needs theoretical innovation and reconfiguration. This article is under the above-mentioned background to write.This article is divided into five parts.ChapterⅠis the phenomenon theory about changing charges:the status of our country.The article discusses the causes and the forms of the changes in Chinese court,which refers to when the court believes the crime that the prosecution accuses is different from the facts the court identify, the court can directly re-charge the accused guilty according to the facts and evidence.The concept makes clear the dimensions of the conditions of charge from the subjects, the reasons and results.And there are four forms the court to change the charges:the court identifies a different crime with the prosecution; the prosecution has a number of charges but the court holds one; the prosecution has one but the court holds a number of charges; the prosecution has a number of charges but the court holds some different ones.When it comes to the causes of the current confusion, this article concludes it as: the mode of operation of the proceedings in terms of reference,the principle of the separation-controlled trial has not been effectively carried out and the basic functions of the indictment has not been brought into full play.The article reviews the positive and negative arguments on the right to change the charges.The judicial practice and theoretical circles all have positive and negative arguments on the right to change the charges,and both sides have clear and full arguments,and I agree that the courts have the right to change the charges, but such changes should subject strict limitations and constraints in substantive and procedural.The article analyzes the defects and deficiencies of the imperfect system.Lacking of conditions and procedures,the system can not give the the offense right to attack and defense but launched a sudden attack,the lack of right to defend as well as the imbalance of the two sides,which have all caused widespread concern.However,many researchers often take themselves as "legislators" to discuss the reformation and improve the relevant systems,but this article advocates for a transition in research and research methods,so as to take a breakthrough on the framework of the problem and in a more macro perspective to find ways,therefore,the discussion of changing charges should be placed in the criminal trial proceedings and in the framework of the object of the criminal proceedings theory.ChapterⅡis the basic theory about changing charges: the introduction of the object of criminal proceedings.The article makes clear the meaning of the object of criminal proceedings.Criminal object theory is one of the basic principles of criminal proceedings and the basic of the court to change the charges,and whether the basic theory can be well studied decides whether the drawbacks can be overcame.For the most important,the object of criminal proceedings is the target of all the participants,and then the content of the object is the scope of the knowledge.To this,theoretical circles have argument in"the right to penalty," "crime facts," "criminal responsibility","case facts"and "binary".In fact,the contents of object of criminal proceedings are not only the center of it but also the core of entire criminal activity,to study the contents should be made clear as a prerequisite for the content. Combying the characteristics like core、objectivity and uniformity,so,the case facts and the legal evaluation on it should be the content of object of criminal proceedings.The case facts is a judge of the true situation according to the criminal acts and subjective perception,and for this article, the facts of the case should be based on the substantive law fact,and the "legal evaluation”refers to the legal assessment of the facts".The evaluation of the facts of the case is corresponded to the contents of the object theoretical,which is because:the facts of the case has a close relationship with its evaluation;their advanced nature; their imbalance.The article analyzes the function of the object of the criminal proceedings.Criminal object has the basic value,which is determination, decision and delineation The article discusses the characteristics of the criminal proceedings.The unity and identity is the characteristics of the object, and unity refers to the case in the criminal prosecution and trial is a simple and indivisible case,the court in this case can only exercise a sentence right and a referee,and once the sentence is confirmed,the action object can not be a new one;while identity refers to the fact that the trial should be consistent with the prosecution facts.The article analyzes the violation of the principle of legal proceeding that the changes bring.The existing system of court is a violation of the principle from the form and substance.Simply speaking, the former is the violation of the contents of the theory;the latter is the violation of the real features.ChapterⅢis the standard theory about changing charges: recognition of the object.As to the recognition of the object of criminal proceedings,the article initially set a position of it.The civil legal proceeding provides a new way of thinking:to highlight the relationship between substantive law and procedural law;to focus on the special identification under "competing" state;to combine the recognition theory with the native proceeding system.As the basis for identifying the object in criminal proceedings,the article takes the specificity which is accorded to the different legal backgrounds and historical traditions as the entry point to discusse the difference of the two legal regions and analyzes the theory of progressive constitute-terms of reference and double level constitute theory-litigation and the parties pattern as while as the necessity of correspondence.However,the basis to identify the object should be accorded to the statement of charges and its effectiveness,therefore,the record of fact and its effectiveness is a base,and the identification basic can be divided into the prosecution factual basis,basic of lawsuit cause ,as well as basic of "dual factor"under different criminal proceeding modes.The article discusses the precondition and the root of the charge change.The basic of object identification in the criminal proceedings can have its theoretical and practice value when to determine the consistency of the fact in bill of complaint and the court to state,and therefore,the ultimate recognition of unity and identity are the standards to determine the object of criminal proceedings,and at the same time,the two are the precondition and root of the charge change.First of all, the unity includes a single defendant with a single crime, a single judge on the crime facts,and the Civil Law takes the number of crime and action as the standards.Then,the identity includes the defendant and the crime, the Civil Law has discussion on"natural fact identity","basic facts identity "and"crime quality identity",while in the Common Law countries there are three standards such as the statement of charges, trial evidence and abstract elements.ChapterⅣis the reference theory about changing charges: comparative law investigation.From a global point of view, the charges are allowed to change in many countries or regions to some extent. The paper select the Common Law countries like the Britain、the United States and Civil Law countries like Germany、Japan、France as the target to investigate.First, the change modes in Common Law countries is“limited entity model”. Common Law countries use trial cause system and its goal is to determine the trial object and the focus of attacking and defense to ensure defendants to have full right to defense.The trial judge is under the constraints of the fact that the charges record and the criminal charge,so the basic task of the judge is to make sure whether the cause exists according to the evidence,but can not change the charges the indictment charge.However, in order to resolve the litigation between the justice and judicial efficiency, the Common Law countries arise a flexible system. It allows the judge breaks away from the accuse cause and declare guilty on condition that the judges do not exceed the scope of the prosecution and do not have prejudice when the defendant exercise their right to defense.Because they use the entity restriction way to limit the changes of charge,this type is called the“limited entity model”.Second, in Civil Law countries it is summed up as“limited program model”.The Civil Law countries use indictment fact system and the constraints of indictment effectiveness are mainly about the criminal facts and the defendant but not the legal evaluation.As the indictment fact has unity and identity, the scope of a magistrate judge can only relate to the recorded defendant and crimal fact.However,under the principle of unity and identity, the court can put the new fact to trial and the clauses the statement of charges regers,which is also the legal evaluation,is generally believed that it can not restrict the judge and if the court believe that the charges are not accurate based on the facts, they have the right to make changes. However, that the court directly change the charges the prosecution authorities make is similar to " magistrate judgment," which will seriously infringes the defendant’s rights.For this reason, Civil Law countries design strict procedures to limit the judges to change the charges, so its change pattern is called“limited program model”.ChapterⅤis the realization theory about changing charges: theoretical integration and system reconfiguration.First,the charge change of court needs a theoretical integration.We have the "coupled model " crime constitution theory and take the" crime constitution standard "as the standard to judje the quantity of crime;in the procedural law,we use a model of litigation and the terms of reference and the implement fact system,but the "coupled model " crime constitution theory can not match with the model of terms of reference.Although our crime constitutes pattern and the criminal proceedings does not correspond to the situation,furthermore,under the present circumstances in our country it is hard to put the new crime constitute theoretical system into practice and the concept of litigation can not be changed in a short period of time. So the pattern change should be on the basis of our system and put some system regulation.First of all,we should have regulation on the entity and judje the crime fact by the crime quantity and make sure that the court can change the charge only in the case thatit is a single one.We judje the identity of defendant by“representation theory" and determine the fact by nature fact identity,for that the crime fact in criminal procedural law should be unique and the nature fact emphasis on"the coherence".Therefore, the fact which is based on the nature of the charge should be clear and standardized. Time, subject and defend conditions should be set as three elements that the court should follow.In addition, we should strengthen the reform and improvement measures,which mainly display as the improvement of indictment change and statement of charges.更多还原