反思疑罪从无及其适用

发布时间：2019-02-15 11:50

【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。
[Abstract]:There are some misunderstandings about the nature, radiation range and applicable consequences of the suspected crime in our country's practical and academic circles, which are interpreted in an expansionary way, thus blurring its due limits. As a judgment rule with substantive law and evidence law, the application of suspect crime is based on the rule of evidence judgment, the rule of strict proof, the principle of free proof, and so on, and is subject and object. Time points and other aspects of the restrictions. In addition, the suspicion of crime is bound by internal and external mechanisms such as judgment documents reasoning, judgment conscience and so on. "not guilty" is not the only consequence that the suspect crime has never been applied to, "misdemeanor" and "lenient punishment" are also in line with the basic meaning of the principle. It is narrow to refuse to treat suspicion lightly without distinction, and it is unreasonable to equate it with the judgment of "lenient suspicion" in judicial practice of our country. In the view of reason, suspicion is never the only way to prevent unjust and false cases, nor is it a panacea for the intractable criminal justice.
【作者单位】：清华大学法学院;
【分类号】：D924.1

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