从单向度惩罚到迂回博弈:对我国刑事诉讼模式的另一种解读

我们习惯以“当事人主义”“职权主义”等西方概念言说中国刑事诉讼模式 ,但这也许导致对中国实践的根本误读。中国刑事诉讼的实际结构应当是 :普通情况下是国家惩罚意志笼罩下的单向度惩罚模式 ,特殊情况下 ,被告人可以借助庭外权威对法官个人意志施加影响 ,从而达到与国家权力的迂回博弈。

From Unilateral Punishment to Circuitous Adverseness:Another Interpretation on Chinese Criminal Procedure

We have been used to describing Chinese criminal procedure with western terms such as "Adversary System" or "Accusatorial System", which may lead us to a completely wrong conclusion in our practical work. By picturing a real case in details, this article presents a real configuration of Chinese criminal procedure, that is: generally, it is a unilateral punishment mode dominated by the political power, while under some particular circumstances, the accused gets help from the external authorities to put influence upon the judge's opinion so as to have a circuitous adverseness with the country.