我国刑事法官庭审指挥权之探讨

近年来我国的刑事审判方式改革一直强调弱化法官在庭审中的职权,而主张学习英美当事人主义模式下法官的消极克制。但是,弱化法官职权并让法官消极克制并不意味着可以取消法官在庭审中的能动性。为实现审判之目的,保障庭审公正、高效和有序,必须赋予法官庭审指挥权。庭审指挥权包括诉讼许可和禁止权、程序异议裁决权、庭审引导权和告知权、证据调查指挥权、诉讼进程控制权和庭审秩序维持权。在我国,应当建立科学合理的庭审指挥权体系以及控辩双方权利救济机制,促进法官行使自由裁量权的客观化和检察官地位的当事人化,并通过转变司法观念和提高法官素质保障庭审指挥权的正当行使。

On the Criminal Judges' Power to Direct Litigation in China

In the recent years, the reformation of the trial pattern in our country is always emphasized to weaken the judges' power in the court and to study the Anglo - American adversary system to keep judges negative and restrictive. However, weakening the judges' power and keeping them negative and restrictive doesn't mean to deprive judges of all the procedural powers. For the purpose of the trial and in order to guarantee the trial operates fairly, orderly and efficiently, we must give judges the power to direct litigation, which includes the permission and prohibition of the litigation, the finding of demurral to procedures, the power to lead the litigation in the court, the direction to evidence investigation, the control of litigation process and the maintenance of the order in court. In China, we should . establish scientific and reasonable system of power to direct litigation.