刑事二审全面审查原则新探

全面审查是刑事诉讼法界定二审审判对象的根本原则,其建立在司法能动主义、真实发现主义的基础上,有其历史的合理性。随着我国社会的整体转型,司法能动主义受到削弱、真实发现主义受到质疑,加之全面审查要求与实践的脱节,与司法其它价值及与司法整体改革方向的冲突,对其改革不可避免。但由于独特的社会境遇及制度背景演进的渐进性,改良而非废除是更合理的选择。

Improving the Full Review of the Criminal Trial of Second Instance

A full review is required by the criminal procedural law as a basic principle to identify the appellant and his/her crime in the criminal trial of second instance, which was established on judicial activism and factualism and was justifiable then. However, with the change of society, judicial activism is weakened and factualism is doubted. Holding of the review in judicial practice also proves unsatisfactorily. The conflict between the full review and other judicial values and the trend of judicial reform further indicates its incompatibility. In consideration of the uniqueness of social and judicial settings in China, improving rather than abolishing the institution is our wise option.