"疑罪"应当"从无"吗?——法治与情理视角下对疑罪从无原则的重新审视

有"确信"方可定罪,"疑罪"则应从无,这是现代刑事诉讼的基本原则之一.但在实践中,无确信而定罪或明或暗存在,导致疑罪从无原则出现了异化.这种异化的重要原因是情理与法治的冲突,解决的路径在于法治对情理的要求适度让步,对传统的疑罪从无理念进行松动,降低确信成立的条件.

Re-thinking of Principle of No Punishment in Doubtful Cases

No punishment in doubtful cases is one of basic principles of modern criminal procedure.But in practice,some defendants have been declared guilty without conviction.The important reason of this alienation lies in the conflict between the common sense and rule of law.The path of solving this conflict is that rule of law shall make an appropriate concession to common sense,the traditional idea of no punishment in doubtful cases should be loosened and the conditions of conviction should be reduced.