庭外调查权程序性建构概略

修改后的刑事诉讼法保留了法官的庭外调查权,有其合理性,有利于查明案件事实、保证控辩平衡、控制侦查权和维护法官的利益;但法律对于庭外调查权的规定并不完善,庭外调查权的行使也有一些弊端,违反了法官的超然中立地位和加重了法官的负担。因而对法官的庭外调查权从主体、条件、方式、期限、庭外调查所获证据的使用和权利的救济等方面进行严格的程序性限制,将有利于克服庭外调查权在司法实践中的弊端,实现庭外调查的目的。

On Procedural Construction of Investigative Power out of Court

The amended criminal procedural law entitles the judge to investigate cases out of the court, which has its reasonableness and will help to find the truth of the case, ensure the balance of the prosecutor and the defendant, control the police's power of investigating , and protect the judge's benefit . But the measures provided by law about it is not perfect, and its enforcement also has some disadvantages , such as it breaks the impartial position and press more burden on judge. So it will be good to confine the power from the subject, terms, pattern, deadline, usage of the evidence, and the relief of right, and these can overcome the disadvantages in reality and fulfil the aim of the judge's power to investigate out of court.