我国刑事司法制度中的卸责机制——以法院和法官为中心

由司法行为带来的责任包括法律责任、政治责任、道德责任等，这些责任在不同主体之间流动。司法规律和司法体制塑造了将责任汇集于法院最终由法官个人承担的责任分配体系。成为归责中心的法院和法官往往将自身压力往他处转移，形成以法院和法官为中心向四周其他主体扩散的卸责机制。卸责的手段主要有诉诸权威、规则依赖、对外转移和集体承担等。从机构层面看，法院通常将责任转移给检察机关和上下级法院；在个人层面上，法官则将责任转移给合议庭其他法官、陪审员、审判委员会以及被告人本人等。司法责任制改革在落实如何追责的前提下应当探索构建合理的卸责机制。相比于遇到瓶颈的“实体控制模式”，发挥程序功能对责任进行转移分担的“程序控制模式”效果更加显著且更易被法官所感知。

The Shirking Mechanism of Courts and Judges in China‘s Criminal Justice System

The responsibilities brought up by judicial actions include legal responsibility, political responsibility, moral responsibility, etc. The judicial law and judicial system have shaped the responsibility distribution system into a common pattern, which gathering the responsibilities to the courts, then ultimately putting the onus onto the judges. The courts and judges usually use some methods to transfer the pressure and responsibility to other subjects, which is called the “shirking mechanism”. The means of shirking mainly include resorting to authority, depending on the rules, transferring externally, sharing with others, etc. The court mainly transfers the responsibility to the procuratorate and the lower or higher court; the judge mainly transfers the responsibility to other judges, people's assessors, or defendants. On the one hand, the judicial responsibility system reform needs to find ways to investigate the responsibility; on the other hand, the reform should also explore to construct a reasonable shirking mechanism. Compared with the “entity control mode”, the “procedure control mode” that sharing and transferring the responsibility by procedure is more significant and more operable.