刑事既判力理论及其中国化

欧陆的刑事既判力理论源于罗马法,指刑事既决事由所创设的稳定诉讼状态,包括既决事项的实质确定力和程序结果的自缚力。刑事既判力旨在解决刑事判决生效后既决事由的效力范围及程序安定性等问题。程序安定、诉讼经济及权利保障是其理论基础。在效力类型上,终局判决的既判力可分为肯定效力与否定效力、相对效力与绝对效力以及主观效力与客观效力。免诉裁决虽不构成严格意义上的刑事终局判决,但亦经过较严格的证明程序,具有"类"既判力。刑事既判力阻却制度奉行"禁止不利于被告的变更"原则,严格限制非常上诉与再审程序的启动。中国刑事诉讼长期缺乏程序安定的理念,再审程序的启动具有极大的随机性和任意性,应引入既判力理论,以维护判决的权威性及程序的安定性。

Theory of Criminal Adjudged Force and Its Introduction into China

The theory of criminal adjudged force in the European modern period stems from the principle of bis de eadem re ne sit actio in the Roman law. This theory means that the authority of res judicata creates a stable state in the criminal procedure, which includes the substantial certainty and the self-restraint effect to the procedural issues. The theory of criminal adjudged force occupies an important place among the European criminal procedure theories and aims to deal with the issues about the scope of validity and the procedural security. The theoretical foundations of the criminal adjudged force are composed by the procedural security, the litigation efficiency and the protection of rights. For the type of authority, the adjudged force of the final judgment could be classified into the positive authority and the negative authority, the relative authority and the absolute authority, and the subjective authority and the objective authority. The decision of exemption from prosecution is not the final judgment in the strict sense. However, it has the quasi-authority because the facts in this procedure have been fully proved, which can be considered as a final judgment. Besides, according to the criminal adjudged force, we should follow the principle of adverse alteration prohibition and restraint as far as possible the launch of the retrial procedure and the extraordinary appeal procedure. In China, the criminal procedure has been criticized since a long time for lack of procedural security, and the launch of retrial procedure has no solid standards. In practice, the judicial authorities and the interested party can trigger a retrial procedure for different reasons, such as popular indignation, appealing to the higher authorities for help, etc, disregarding the authority of res judicata in the criminal procedure. Therefore, it seems necessary to improve the authority of judgment and the stability of procedure by introducing the theory of adjudged force.