对抗制改革中的司法机关

在我国刑事审判的对抗制改革中,对我国的司法机关包括审判机关和检察机关的认识、定位和塑造,是一个十分现实、重要的理论和实践问题。在对抗制改革中,审判机关和检察机关处于齐步改、同步变的过程中;改变最大的将是法院和法官,由职权制下的积极主动的审判者角色,转变为消极、中立的仲裁人身份;法院和法官的消极和中立不能或主要不能由法院和法官单方面自觉实现,而是在各方的互动下,客观上趋于消极,走向中立;检察机关和检察官也将减弱其身份在职权制下的职权色彩,发生类似于一方当事人的变化,但是,我国的检察官不应该当事人化。

On the Judicial Organ in the Reform of Adversary System

The cognition,status and construction of the judicial organs including the courts and the procuratorates are very prac- tical and important problems both in theory and practice in reform of Adversary system of China's criminal trial.The courts and the procuratorates are in process of simultaneous reform;the courts and judges will change their role from an active and initiative adjudicator in inquisitional system to a passive and neutral arbitrator;the passiveness and neutrality would be implemented not unilaterally by the courts and judges but by the interaction of all participants by which the function of courts objectively trends to passiveness and neutrality;the procuratorial organs and prosecutors will also weaken the inquisitional feature of their status and present some characteristics similar to one party of the action,however,Chinese prosecutors shall not become a party.