摘要
我国实务界和学术界对疑罪从无的性质、辐射范围、适用后果等问题存在一定的误解,对其进行扩张式解读,从而模糊了其应有的界限。作为一项具有实体法、证据法面向的裁判规则,疑罪从无的适用首先以证据裁判规则、严格证明规则、自由心证原则等为制度性前提,并受到主体、对象、时点等诸多方面的限制。除此之外,疑罪从无还受到裁判文书说理、裁判者良心等内外机制的约束。"从无罪"并非疑罪从无适用的唯一后果,"从轻罪"、"从轻刑"亦符合该原则的基本要义。不加区分地拒绝对疑罪的"从轻处置"是狭隘的,将其等同于我国司法实践中"留有余地的疑罪从轻"判决并加以批判也是不理智的。理性观之,疑罪从无既非当下防范冤假错案的唯一出路,亦非祛除刑事司法顽症的万能良药。
There are some misunderstandings both in theory and in practice about the nature, the scope, and the consequences of the principle of in dubio pro reo, which lead to the blurring and ambiguity of its connotation. It is clear that in dubio pro reo is a widely accepted and recognized principle yet with unequivocal limitations. It is not that in dubio pro reo will be applied whenever there is a doubt, but that some prerequisites have to be met before this principle can be applied. It takes other criminal principles, such as free evaluation of evidence, as its institutional premises and is limited by such factors as s ect, object and time. For clarification, a not guilty verdict will not be automatically delivered when there is a doubt. However, there are several options for the fact finders and the law finders to choose from, for example, an offense of lower level or a diminished responsibility. It is not wise to categorically decline a lesser sentence when there is a doubt. Recently, the mendous pressure because some people formerly criminal justice system in China is under treconvicted on the basis of unsound evidence turned out to be innocent. As a result, in dubio pro reo is highly trusted and considered as the most effective and practical way to prevent miscarriage of justice. Unfortunately, this is not the case ： it is neither the only way to prevent wrongful convictions, nor a cure-all solution to chronic problems in the criminal justice system.
出处
《环球法律评论》
CSSCI
北大核心
2015年第4期63-82,共20页
Global Law Review
