摘要
程序性制裁理论具有强烈的"公权制约与权利救济倾向".自 2012 年《刑事诉讼法》修改以来,伴随着刑事诉讼理论研究和改革实践在价值立场和基本问题意识上的转型,该理论的相对合理性不断限缩.以《刑事诉讼法》再次修改为契机,有必要对该理论作实质性反思,即扩张对程序违法的关注范围,调整程序性制裁机械"偏向"被追诉方的倾斜性保障立场,引入即时对抗化的运作机制,设定"程序性争议"这一上位概念来缓和现有理论面临的责任主义困境.检讨与改造程序性制裁理论,或许是本次《刑事诉讼法》修改真正贯彻审判中心主义,体现庭审实质化要求的关键理论助力.
Abstract
The theory of procedural sanctions,along with almost all critical perspectives on it(in-cluding the theory of procedural legal consequences),exhibits a strong"public power restriction and rights relief"bias.These perspectives view procedural legal consequences or sanctions as a significant symbol of the relative independence of procedural law,a form of"ex post facto punishment"for proce-dural violations by public authorities,and a means of"ex-post relief"for prosecuted individuals whose rights have been violated.This theory initially aligned with the then-dominant"dualistic value objective theory"of criminal procedure and the reform direction focusing on addressing the phenomenon of"em-phasizing substance over procedure",giving it relative rationality.However,since the 2012 Amendment of the Criminal Procedure Law,with the"pluralistic value objective theory"significantly challenging the"dualistic theory"and the diminishing explanatory power of"emphasizing substance over procedure"as a reform anchor,the relative rationality of the procedural sanctions theory has been increasingly limited.Nevertheless,neither the introspective research by proponents of the procedural sanctions theory nor the critical opinions offered by other scholars have substantively addressed this"public power restriction and rights relief"bias,and there are many common shortcomings.The re-amendment of the Criminal Pro-cedure Law presents an opportunity to break with the long-held consensus in relevant research and inject new content into the theory of procedural sanctions to adapt to new changes,making it more substantial and explanatory.This re-examination necessitates abandoning the dual limitations on procedural viola-tions,expanding the scope to encompass non-rights-infringing and defendant-committed procedural vio-lations.Moreover,the typological thinking should be used to grasp the diverse and heterogeneous conno-tations of procedural violations.It also requires adjusting the mechanically"biased"pro-defendant stance of procedural sanctions and integrating the concept of"equal arms"in procedural rights,clarif-ying the mutual support relationship between them.Furthermore,it is crucial to shift away from the ex-post punishment/relief mindset and incorporate the litigation objection theory,which emphasizes the im-mediate adversarial handling of procedural disputes,clarifying the mutual connection between the two.Finally,by introducing the higher-order concept of"procedural disputes",the self-limitation of relevant researchers can be broken,and can help mitigate the current theoretical dilemma faced by the responsibility principle.After a series of theoretical reviews and transformations that break away from the consensus,the original theoretical system of procedural sanctions has undergone a substantial expansion.On this basis,through this series of theoretical reviews and reforms,it is possible to move towards a theo-ry of procedural dispute resolution with procedural sanctions and litigation objections as its two main bran-ches,and"procedural disputes"as its core category.Compared with the original theory of procedural sanctions,the theory of procedural dispute resolution is more open and inclusive and has a series of com-parative advantages.It should be positioned as a meta-theory on par with"the value of criminal proce-dure"and"the structure of criminal procedure".Correspondingly,systematically constructing and im-proving the procedural dispute resolution mechanism in China's criminal procedure may be the key break-through point for this amendment of the Criminal Procedure Law to truly implement the principle of trial-centeredness and reflect the requirements of substantive trials.
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