【作者】 张艳；

【导师】 周宝峰；

【作者基本信息】 内蒙古大学 ， 法律硕士（专业学位）， 2016， 硕士

【摘要】 刑事审级制度的重要功能之一就是防止审判权滥用。如果刑事审级制度在运行中被虚置,则无法防止权力滥用,将会损害被告人和被害人的合法权益,阻碍司法公正的实现。以两审终审为主体、死刑复核程序和审判监督程序为补充的四级两审终审制在我国出现了形式化问题。审判实践中,上下级法院关系出现了严重的行政化问题。下级法院经常将正在审理的案件报送上级法院请示处理意见,上级法院为此也主动对其汇报的案件予以指导。上级法院的法官去看守所提审被告人,一般由原审法院的主审人陪同,主审人会将自己对案件的个人观点,讲述给二审法官,上下级间进行详细沟通,甚至一审的法官会直接表示被告人犯罪情节特别恶劣,影响特别重大,示意二审法官应当重判或者维持。法院内部审判方式行政化,承办法官阅卷、提审、开庭、接见被害人及被告人的律师,他的裁判基础很好,可他对案件无最后决定权。院长和庭长对案件的掌控造成了“审者不判,判者不审”的结果。审判委员会裁判案件导致了审理权与裁判权的分裂。我国各级党委都设有政法委员会,遇有重大或疑难复杂的刑事案件都要向政法委员会汇报,由其协调组织多个部门进行研究,并提出处理意见。这种做法的本意是汇集多方力量妥善解决问题,却在实际上架空了审判独立原则,政法委临时带领的这个团队变成了幕后的裁判者。粗糙的一审程序使得一审案件质量无法得到保证。我国刑事第一审案件开庭审理走过场,在控辩不平衡、控审不分的大环境下,公诉人往往特别强势,律师的辩护则显得单薄,辩护人如果是法院为被告人指定的,其辩护基本上都是敷衍了事,并不认真履行职责,直接导致被告人的辩护权得不到保障。基层法院普遍存在刑事审判庭向其他审判庭借人组成合议庭的问题,导致合议庭虚置。上级法院指派本院法官赴下级法院就任院长、副院长、庭长,造成上下级审判人员混同问题。二审程序虽然实行全面审查原则,但我国二审法院普遍实行书面审理方式,并且上下级法院关系出现行政化倾向的情况下,二审程序没有发挥法律赋予的纠正一审错误裁判,为当事人提供权利救济的功能。死刑复核程序趋向行政复议。死刑案件如果一审是由最高人民法院受理的,那么该案一审终审,被告人的上诉权被剥夺,最高法院仍然是先自己作出判决然后再自己进行复核。再审程序极大扩张,导致案件终审不终。我国刑事审级制度形式化问题凸显,严重影响了我国法治现代化的进程。而要想改变这一现状,实现司法公正、司法效率的价值目标,就需要纠正错误的理念,进行深度改革。笔者以所在法院审级职能的实际运行状况为出发点,对全国有影响的典型案例进行分析,剖析了我国刑事审级制度存在的形式化问题,结合刑事审级制度的基本原理,指出应对刑事审级制度形式化问题,在微观方面要推进庭审实质化。在宏观方面,当前全面实施的司法体制改革中各项深入、具体的举措可以从多方面解决我国刑事审级制度形式化问题。通过考察国外先进法治国家刑事审级制度的相关立法规定、制度运行模式,得出各国审级制度虽相异但多数国家均将第三审程序定位为法律审的结论,笔者提出了在吸收和借鉴国外先进经验的基础上,建立有限的三审终审制度的构想,在现行的等级结构不变情况下重新划分各级法院的职能。具体说就是建立四级三审终审制度,在法律上对于一定数量的案件给其两次上诉的机会,案件的第三审定位为法律审,不进行事实审。同时将死刑复核程序的性质重新定位,使其回归诉讼程序本身,纳入到三审终审的审级制度中。对审判监督程序予以完善,再审的提起必须严格化。更多还原

【Abstract】 One important function of the criminal trial grade system is to prevent the abuse of jurisdiction. If the criminal trial grade system in execution is unpractical, it will result in the abuse of power, and damage to legitimate rights and interests of the defendant and the victim, which will hinder the realization of judicial justice. In China, the four stage two-tiered system with a two-tiered system as the main body, death penalty review procedures and procedure for trial supervision as supplement have some nominal phenomenon. The relationship between superior and inferior counts emerged serious administrative problems in trial practice. Lower courts often submit the case now being tried to the superior court for consulting a treatment decision, so superior courts have active guidance to their reported cases. Superior court judges go to jail to arraign the defendant, generally accompanied by presiding judges of the original court. They would put their personal views about the cases to the judge of the second trial, and through detailed communication between higher and lower, even the first trial judge may directly represent that accused crimes are particularly bad, and make serious impact, indicate the second trial judge should be heavy sentences or maintain. The trial mode of internal courts are administrative. The presiding judges can read files, arraign the accused, participate in the trials, and meet with the lawyers and the parties, who have a good referee basis, but without the final decision. The control of the cases by deans and presidents lead directly only judging a legal case or only giving a verdict. Judicial Committee to exercise the cases jurisdiction separates the inherent unity of the right of trial and jurisdiction, resulting in division of the trial and the sentenced. Party committees at all levels in China have the Politics and Law Committee, to whom should be reported in case of major or complicated complex criminal cases. The Politics and Law Committee will coordinate and organize the multiple departments to study and put forward treatment suggestions. This approach is intended to properly solve the problem collecting various power, but in fact hollowing out the independence trial principle. They lead the team into a judge behind the scenes. Rough the first-instance procedure makes first instance quality be unguaranteed. The first instance of criminal cases in our country go through the motions in court trial. Under the environment of the imbalance in the prosecution and the defense, regardless of prosecution and trial, public prosecutors are often particularly strong, and it appears that the lawyer’s defenses are thin. If they are court-appointed counsel for the accused, the defenses are essentially perfunctory, not conscientiously perform their duties, as a direct result of the defendant’s rights to defenses are not guaranteed. Primary courts have a common problem with forming a collegial panel by people borrowed from other divisions in a criminal court that cause the collegial panel unpractical. The judges of the superior court are assigned to a lower court as the President, vice President, chief judges, resulting in confusion problem with hierarchy judicial personnel. Although procedure of second instance practice the principle of comprehensive review, but our court of second instance widespread use documentary hearing mode, and under the condition of appearing administration tendency of the relationship between the higher and lower courts, procedure of second instance do not play the function conferred by law to correct errors of trial judges, provide the right remedy to parties. The death penalty review process tends administrative reconsideration. If the first instance of the death penalty are accepted by the Supreme People’s Court, then first instance of the cases are final appeal, and the defendant’s rights of appeal are stripped, the Supreme Court is still make their own judgments and then carry out their own review. Retrial program are greatly expanded, which leads to the case does not end of final appeal.The highlight of nominal phenomenon of our criminal trial grade system has seriously affected the modernization process of the legal system. In order to change this situation, to achieve value target of judicial justice and efficiency, we need to correct wrong ideas, conduct in-depth reform. The author took the actual operation situation of trial grade system in the court. As the starting point, analyzed the typical cases with nation-wide influence, and dissected the nominal phenomenon of criminal trial grade system in our country, and on this basis, combined with the basic principle of the criminal trial grade system, points out that we should promote trial substance at the micro aspect, and at the macro level, practice the depth and specific initiatives of the full implementation of the current judicial reform which can solve nominal phenomenon of criminal trial grade system in China from several aspects. By examining the relevant legislation, system operating mode of Criminal Judicial System in the advanced state of law, it is concluded that most of the countries positioned the third trial procedure as legal trial although differences in the trial grade system in different nations. Therefore, the author puts forward to the conception of establishing a limited three-tiered system based on the absorbing and learning from foreign advanced experience, and redraws functions of the courts at all levels under the condition of constant current hierarchy. Specifically, four stage three-tiered system will be established, there have twice appeal opportunities for a certain number of cases legally, the third trial of the case will be positioned as legal trial, not as fact retrial. In the meantime, the nature of the death penalty review process will be repositioned to return judicial proceeding itself into the trial system of the third instance as the final. The procedure for trial supervision will be improved, and retrial in the filed must be strictly.更多还原