论审判对象的变更及其控制

在强调诉审分离的近现代诉讼构造下,无论法官还是控诉方,其权力均被设定了合理的界限与范围,体现一种分权制衡的机理,显示一种对被告人防御权利的保障的理路。审判对象发生合理的变更,主要基于两种理路,一是“起诉变更主义”,二是“审判对象狭义论”,进而表现为内容、性质及方式上若干类型的变更。面对审判对象变更,利益受影响最大者是被告人,故而要将审判对象变更控制在合理限度内与正当程序中,有效防范突袭性审判的发生。我国现行审判对象变更实践缺乏合理的控制机制,并常常表现为法院与检察院的一种“沟通”,当务之急是要完善审判对象变更程序,对审判对象变更实行正当性控制。

On the Change of Trial Object and Its Regulation

Modern criminal procedural structure is based on the separation of prosecution and trial for the protection of defence rights, under which the power of judge and prosecutor are well defined according to the check and balance rationale. However, the object of the trial can be reasonable changed for two reasons. One is "changeability of prosecution" and the other "object of trial in narrow sense", hence the changeability of content, nature and style. Change of the trial object will influence the defendant a lot. Thus it shall be limited reasonably and based on due process with shock avoided in trial. In Chinese criminal procedure, change of trial object is frequently a result of arrangement between judge and procurator, and it is urgent to reform the actual system and to make due control to the change of trial object.