刑事自诉案件证明标准的反思与重构

刑事自诉是刑法公法化之前人类社会纠纷解决的普遍形态,尽管适用范围被逐渐限缩,但仍有其独特的制度理性和价值。在立法层面,虽然自诉制度同公诉制度有诸多差异,但由于对刑事自诉制度缘起及社会功能的认知模糊,当前的刑事自诉案件证明标准在制度设计上与公诉案件混同,以致实践中自诉案件无罪率畸高,未能发挥自诉制度的实效而使该制度虚置,即为制约自诉制度功效的最大桎梏。为此,应当澄清自诉制度的本质,还原其作为"私犯"救济的历史真相和社会属性,基于提高诉讼效益和自诉人举证能力偏弱的现实,剔除公诉案件证明标准中对公权力进行限制的制度设计理念,重新建构不同于公诉案件的自诉案件证明标准,在语言表述上可以将其界定为"证据基本确实、充分,事实基本确信",以此推进刑事自诉的实行化。

Reflection and Reconstruction of the Standard of Proof in Criminal Private Prosecution Cases

Criminal private prosecution is a common form of dispute resolution in human society before the public law of criminal law.Although the scope of application is gradually limited,it still has its unique institutional rationality and value.At the legislative level,although there are many differences between the private prosecution system and the public prosecution system,due to the vague understanding of the origin and social function of the criminal private prosecution system,the current proof standard of criminal private prosecution cases is confused with the public prosecution cases in the system design.As a result,the innocence rate of private prosecution cases is extremely high in practice,and fails to give full play to the effectiveness of the private prosecution system which is the biggest shackle to restrict the effectiveness of the private prosecution system.Therefore,we should clarify the essence of the private prosecution system,restore its historical truth and social attribute as the relief of “private offenders”,based on the reality of improving litigation efficiency and the weak ability of private prosecutors to provide evidence,eliminate the system design concept of restricting public power in the proof standard of public prosecution cases,and reconstruct the proof standard of private prosecution cases different from public prosecution cases.In terms of language expression,it can be defined as “the evidence is basically true and sufficient,and the facts are basically convinced”,so as to promote the implementation of criminal private prosecution.