论德国和意大利刑事司法语境中的预审

德国、意大利都曾照搬法国的预审法官制度,又先后于1975年和1988年通过新的《刑事诉讼法》予以了废除。但德国和意大利并未完全废除预审制度,而是根据其本国的实际情况,构建起了具有其本国特色的预审制度,原由预审法官行使的侦查和部分司法裁决职权,改由司法警察、检察官、侦查法官、中间程序或初步庭审程序法官等来行使。因此,在德国和意大利的刑事司法语境中,虽无“预审”之名,但仍有“预审”之实。

Preliminary Hearing in the Criminal Judicial Context of Germany and Italy

Both Germany and Italy copied the prejudication judger system of France, then abandoned it in 1975 and 1988 by new Criminal Procedure Law. However, they did not abandon preliminary system completely. They built preliminary system of their own characteristics according to the reality of each country. The power of investigation and part of judicial discretion which had been exercised by preliminary hearing judges was exercised by judical police, prosecutors, investigation judges, interlude or preliminary court hearing procedure judges and so on. Therefore, there is no so-called ＂preliminary hearing＂ in the criminal judicial context of Germany and Italy, but ＂preliminary hearing＂ actually exists.