论法官的职权调查原则——以职权主义刑事诉讼为背景的展开

职权调查原则,最早源于罗马法,成型于中世纪,指为查明真相,庭审法官(或审判长)可不受控辩双方所提供之证据材料的约束,而依职权主动调查及收集所有可能对揭示真相有意义的事实和证据。这是职权主义国家的通常设置,也是职权主义区别于当事人主义的核心要素。法官职权调查原则的正当依据在于实质真实,并不违背公正程序的要求,也不会压缩刑事辩护的空间。中国的法官职权调查原则备受诟病,核心原因在于特殊的诉讼权力构造,而非职权调查原则本身。在庭审证明实质化的大背景下,强调法官的职权调查原则是保障实质真实的需要,符合中国的职权主义传统。

On Principle of Investigating in Accordance with Authority by Judge:Under Background of Inquisitorial System in Criminal Proceedings

The principle of investigating in accordance with authority can be traced back as early as to Roman law and molded itself in medieval ages,which indicates that to find out the truth,the trial judge(or Chief Justice)can investigate and collect any facts or evidence helpful to reveal the truth without being restricted by evidence provided by both parties.The principle not only is common in inquisitorial countries but also is the core factor which is different from adversary system.What makes this principle justifiable is that seeking substantial justice is not in conflict with the requirement of fair procedure,neither does it comprise any room for criminal defense.The key reason why Chinese version of this principle gets criticism a lot lies in the special procedural construction,rather than the principle itself.It would suit for the inquisitorial tradition of China if the role as judges play in investigations in accordance with authority is emphasized to ensure the need of seeking for truth under the trend of making the trial process substantialized.