刑事诉讼谦抑论

刑事诉讼谦抑具有历史规律、思想理念、法律制定等三个层面的含义,包括萎缩性、最后性、克制性、妥协性、宽容性等五个方面的内容。刑事诉讼谦抑化的过程以及谦抑理念的形成,具有广泛而坚实的刑事法一体化基础:刑法学基础、犯罪学基础、刑事政策学基础。应当考虑我国的制约因素,结合刑事诉讼谦抑的价值与限度,有意识地把谦抑理念逐渐融入到刑事诉讼立法与司法当中,以期形成较系统的谦抑制度。

On The Modestly Restriction of Criminal Procedure

The modestly restriction of criminal procedure can be investigated from three aspects:historical evolvement,theoretical analysis,and legal regulations.In the modern civilized countries,criminal procedure modestly restriction includes the following aspects:Firstly,chances for criminal procedure to resolve disputes have greatly reduced.Secondly,criminal procedure has become the last method being used for disputes. Thirdly,the measures of criminal procedure must be taken cautiously.Fourthly,both parties should be com- promised during the criminal procedure.Fifthly,the result of criminal procedure should be tolerant.The for- mation and development of criminal procedure modestly restriction mainly derive from three foundations.In China,criminal law has developed in a more modestly restrictive way,but did not consciously absorb the mod- estly restriction concept to the legislation and judicial enforcement activities yet.