三种刑事审判对象模式之比较研究

英美法系诉因模式的基本特点是刑事审判对象是诉因,法官和检察官原则上无权变更诉因;大陆法系公诉事实模式的基本特点是刑事审判对象是公诉事实,法官有权在公诉事实同一的范围内变更指控罪名;日本公诉事实同一下的诉因模式的基本特点是刑事审判对象是诉因,检察官有权在公诉事实同一范围内变更诉因。三种刑事审判对象模式之间的差异导致它们在不同诉讼价值的实现上各有优劣,刑事审判对象模式上的差异根源于审判方式上的差异。随着审判方式的相互吸收和融合,刑事审判对象模式之间的差异逐渐变小。

A Comparison of Three Patterns of What Is Adjudicated in the Criminal Trial

The regime of cause of action in common law is characterized by the fact that what is adjudicated is the cause of action.In principle,neither the judge nor the prosecution is free to change what is adjudicated.In comparison,the public prosecution in continental law countries is characterized by that the alleged facts is held what is or what can be adjudicated and the judge has discretion to alter the charge under the same fact(s).In Japan,the patter of cause of action is characterized by that the cause of action is what is to be adjudicated while the prosecution has power to change the cause in accordance with the same fact(s).The aforesaid three patterns of what is to be adjudicated have merits and demerits,and their discrepancy originates from their trial methodologies.With incorporation and merger of trial methods,the difference may be gradually ironed out.