法院改变罪名如何运作——兼与提出设置罪名改变通知程序的龙宗智先生讨教

对于法院能否改变罪名的问题学界和实务界争议教很大.龙宗智先生认为因为立法和司法解释已将判决改变罪名的权力明确赋予法院,固而法院改变罪名就不是法院有没有权力的问题,而是如何具体运作的问题,即是一个程序问,从而建言应设置一个罪名改变通知程序来进行具体运作并进一步论证了其合理和可行性.该程序具体运作由于庭审结构畸变导致法理上的不合理,条件上的不支撑,实践上的不可行,实效上的难如愿.对协商无效后作出无罪判决更为理性.

On the Strategies for the Courts to Reconvict--A Discussion with Prof. Long Zongzhi Who Proposed to Set up an Imparting Procedure for Reconviction

In both the academic and practical circles, there exists a heated dispute on whether the court has the right to reconvict or not. Prof. Long Zongzhi holds that, since legislation as well as judicial interpretation have already endowed the court with the right of reconviction, it is more about how to operate in specific cases than on whether the court possesses the power. That is to say, it is something concerning the procedures. Accordingly, he not only suggests that certain imparting procedure for reconviction should be set up, but also proves its rationality and feasibility. After thorough studies on the strategies of reconviction, this essay aims at expounding in details its irrationality in the light of jurisprudence, lack of supports as far as conditions are concerned and infeasibility in practice, and then puts forward a more rational alternative: making innocent judgment after invalid negotiation.