论刑事上诉审构造

刑事上诉审构造,是指为规范上诉审与初审之间的关系,法律对刑事上诉审的审判对象、审理范围、审理方式、裁判方式等的规定所构成的整体格局。上诉审构造各构成要素的搭配须遵循一项基本原理,即审判对象与审理范围决定审理方式与裁判方式。在比较法上,存在三种典型的上诉审构造类型,即复审制、续审制、事后审查制。我国法律针对刑事上诉审构造的各方面要素,均已有不同程度的规定,但是未能对四方面要素的关系作出合理安排。因此,在立法没有对上诉制度作出根本性变革之前,可以考虑以上诉理由为标准,对二审案件进行分流,从而尽可能实现刑事上诉审构造的合理化。

On the Structure of Criminal Trial on Appeal

The structure of criminal trial on appeal is the overall pattern from the legal rules about the object of trial,the scope of hearing,the mode of trial,the judgment mode and so forth,in order to regulate the relationship between the trial on appeal and the first trial.The elements of the trial on appeal should be arranged according to the basic principle of the trial on appeal,which means that the mode of trial and the judgment mode should depend on the object of trial and the scope of hearing.In comparative law,there are three typical types of trial on appeal,i.e.trial de novo,continued trial and post-review.Our current law has already have some different levels of regulations about the various elements of criminal trial on appeal,however,it has not arrange the relationships among the four aspects of elements reasonably according to the basic principle of trial on appeal.Thus,before the fundamental changes of appeals system happen in legislation,we could think about taking the grounds of appeal as standard and distributary the second instance cases,in which way we could try our best to realize the rationalization of the structure of criminal trial on appeal.