法院变更起诉罪名之研究

目前国外对法院变更指控罪名问题研究已较成熟,英美法国家以法院不能变更指控罪名为原则,以变更指控罪名为例外.而大陆法系国家的法律规定,法院依职权审判,在事实审判上需要受制于起诉指控的范围,而在法律适用和罪名确定上法院可以自主行动.我国在该问题上虽已有法律规定,但太笼统,简单,面对一些实际问题该法律规定似嫌无能为力.法院应该享有变更指控罪名权,只是要在法院行使该权力时给予必要的规范.法院对指控事实的认定和检察院并无二致,只是在罪名认定上有分歧时可以直接在判决书中将指控罪名加以变更,该变更必须未对被告人辩护权造成实质影响且对其有利;如果指控罪名不当,法院如欲变更会恶化被告人的处境,不宜直接变更,须与检察机关协商后按照一定的程序加以变更.

Research as to Courts Modifying Accused Charges

Research about courts modifying accusing charges in foreign countries has been matured nowadays. Countries of Anglo-American law system have made principles of non-modifying accusing charges and modifying exception. However laws of countries of continental law system stipulated: courts judge cases in function and power, being restricted the prosecute terms in factual judge but can being autonomous action in law application and conclusive charges. Though it has been stipulated in laws in our country, it is too simple, too general and it seems to have no ability when facing some actual problems. Courts should have rights to modify accusing charges. But necessary specifications should be compulsed when rights above have been enforced exercise power. Courts agree with procuratorates ascertainment of charged facts only when courts can modify accused charges directly in court-verdict when difference appears as to ascertainment of charged crimes. Such modifying must not have substantial influent on rights to defense of defendant and must have advantage to defendant. If accused charges misaccuse and also if courts modify accused charges, the position of defendant will be worsened. So courts shouldn't modify directly but must modify it according to certain procedure after consulating with procuratorial organi.