变更罪名实证研究

以最高法院示范性案例中的全部变更罪名案例为样本进行实证研究,可以发现其中存在几对实然关系。变更罪名未必都有失公正也不必然体现实体公正,择轻变更未必都有利于被告,合法的变更未必是合理的变更,变更罪名给法律适用带来的不确定性根植于现行法律和法理之中。对其进行法律解释学和犯罪定义学分析,将有助于对变更罪名现象的解读和限制。

An Empirical Study on the Change of Accusation

By an empirical study on all instructional criminal cases selected by China's Supreme Court,in which courts put a different imputation on the alleged offense of the defendant from what the defendant was accused of,we could find several correlations between variants.The article thus concluded that a change of accusation is neither necessarily leading to injustice,nor substantial justice.A change of accu- sation towards a minor imputation is not definitely favorable to the defendant.Although it is legal,it will not necessarily lead to rationality.A change of accusation leads to uncertainty of application of law, which is rooted in China' s legal practice and theory.So a study from the viewpoints of legal hermeneutics and the theory about defining crimes will help to make a better understanding of this phenomena of court's rendering different imputations on alleged offenses,and consequently to make the right limitation on it.