错案追究终身制的发展难题——制度缺陷、逆向刺激与实用主义重构

从错案追究终身制的历史发展来看,其在防治司法不公上的作用非常有限。作为司法机关内部的一种责任追究机制,它也表现出浓厚的行政化色彩和明显的制度缺陷。错案界定不明、纠责范围不确定以及职业风险终身性等问题的存在,导致法官采取各种方式来规避这种制度性缺陷,使得错案追究终身制在司法实践中产生了一种逆向刺激结果。为了纠正我国错案追究终身制的发展难题,司法机关应当以法律实用主义的理念重构该制度。

The Development Predicaments of the Misjudged-Case-Investigating Mechanism for Lifetime: System Deficiencies,Adverse Stimulation and Pragmatism Reconstruction

The misjudged - case - investigating mechanism has played a very limited role in prevention of injustice from a historical perspective. Moreover, as an accountability mechanism within judiciary departments, it has a strong administrative feature and several obvious system deficiencies. Such issues as the vagueness in defining the ＂misjudged - case＂, the indefinite scope of accountability and the lifetime occupational risk have led the judge to take various measures to evade these system deficiencies. As a result, the misjudged - ease - investigating mechanism has produced an effect of adverse stimulation in practice. In order to cope with these development predicaments, the judiciary departments should reconstruct the system abiding by concept of the legal pragmatism.