提 要

庭审是刑事诉讼的中心和重心，建构合理的庭审制度理论对于刑事诉讼研究具有重要的，基础性的价值。而且新刑诉体制下的庭审环节，是各种矛盾和冲突的集中体现。通过探讨庭审的基本理论以及现实中的矛盾和冲突，研究整体上的制度协调和微观意义的制度填充，对于新的刑事诉讼体制的完善和有效运行具有十分重要的意义。

    本博士论文分上下两篇，上篇为总论，论述庭审的要素、功能和价值目标；庭审的基本原则和原理；庭审制度的前现代类型和现代各种类型的比较研究；关于中国新的庭审方式的特色。下篇为分论，论述庭前的公诉审查程序；庭审调查和辩论程序的基本问题。并对庭审调查的重点和难点——人证调查进行了专门研究，对法官的审理和裁判作了专门研究。

刑事庭审，是指法官在其他诉讼关系人的参与下在刑事法庭以特定方式审理刑事案件的活动。为实现其功能，法庭审判应具备四大要素：1、主体要素。法官与控辩双方是庭审诉讼主体，证人、鉴定人、翻译人员等因其辅助作用是庭审法律关系主体，法官是其决定性作用的庭审主体；2、客体要素，即刑事案件；3、时空要素。庭审进行于特定时空，庄严性为其空间特性，连续性为其时间特性。空间设置方式可以反映庭审的精神和结构。4、方式要素。法官和其他庭审主体是采用哪些步骤、行为和程序以推进和完成庭审。庭审方式在相当程度上取决与诉讼中控辩审三方的关系构造及其互动作用。庭审的意义是“定纷止争”，其具体功能包括：1、事实查验功能；2、法理释明功能；3、冲突处置及其正当化功能。庭审的价值目标，一是实现客观公正。二是实现诉讼效率。

实现庭审功能和价值目标，需要一种合理的结构和机制，其构成要素即庭审的原则，即“指定方向，但保留余地的‘最优化规定’”。作为一个原则体系，庭审原则可以具体分为三个部分。一是构造庭审格局，形成审理基础的结构原则；二是在案件审理过程中应遵循的操作性审理原则；三是法官裁决案件应当服从的裁判原则。作为一种“三方组合”，庭审的结构原则含：1、法官独立。法官在审判中不受干涉，只服从法律。2、法官中立。一是利益规避；二是角色分离；三是法定法官。3、司法至上。法官因裁判职能和结构地位，对诉讼过程有权威性作用并生决定性影响。4、诉辩平等。要求平等获得与案件有关的信息；被告人成为诉讼主体并获得诉讼关照；辩护权的肯定和保障是诉辩平等的重点。刑事庭审的审理原则包括：1、审判公开。尤其应妥当处置审判公开与相关利益的冲突：一是根据公共利益需要限制公开审理。二是实行局部不公开的审理制度。三是在审判公正与新闻自由的冲突关系中，对审判公开的方式作适当选择。四是建立诉讼笔录的公开制度。2、直接言词。要求实际上的法官“在场”而非缺位，要求口证辩论。3、辩论质证。审判须以双方的攻击防御为基础，采用抗辩举证和质证。4、集中审理。审判应持续进行，一气呵成，以实现迅速审判和正确裁判。刑事庭审的裁判原则包括：1、诉判同一性。要求法院审判受起诉范围的限制。2、证据裁判。刑事裁判须以事实为根据，而认定事实，应凭证据，3、依法裁判。反对任何枉法的、违法的，以及无法律根据的任意性裁判。四、有利被告。在信息有限而存在多种可能的情况下，应当作出“疑义有利于被告人”的选择。其意识预设是：宁纵无枉。

刑事庭审的结构可分为前现代结构与现代结构。前现代结构包括1、弹劾式与纠问式结构；2、前现代的混合式结构。3、反理性的特别审判结构。反理性结构的特征是法官不独立；采用非人道和反理性的方法获取供词和证词，并将其作为定案根据；任意的，无程序保障的庭前羁押；先入为主，有罪推定；被告人丧失了主体地位，并无辩护和辩解的权利。现代刑事庭审结构在具有符合理性的一些共同特征的基础上，可分为英美法系的当事人主义审判结构，大陆法系的职权主义审判结构，以及所谓“混合制”结构。在客观真实、诉讼公正、诉讼效率以及对诉讼条件和资源的要求方面，不同结构具有不同的功能。在制度借鉴方面，要认识所得往往和所失相伴，审判方式“混合”后仍具有一种基本倾向和特点，由于各方面的原因，向当事人主义借鉴是一种更为普遍的趋势。

我国新的庭审结构（即庭审方式）在庭前程序、庭审程序、诉讼主体的权利义务以及审决机制等方面均具有独特性，是一种具有中国特色的混合式庭审方式，可以说是中国传统和固有的制度因素、现代职权主义以及当事人主义三大要素的揉合。研究我国庭审模式必须注意我国庭审制度的运行条件和背景。在我国借鉴当事人主义的庭审制度改革，将受到本土资源的顽强抵抗、限制和改造，其中包括文化、政策、制度和实际资源的四大限制。造成不彻底的实质化、不充分的对抗性、不完全的平等制以及不够规范的操作方式。而运行中的最大矛盾是控辩式程序与追求实质真实的冲突。改革完善庭审制度的目标模式为具有中国特色的灰色模型，改善的主要路径是磨合、调合与局部和全局的整合。

     庭前程序的改革向贯彻排除预断原则迈了一大步，同时照顾了新旧制度的衔接以及司法的现实，但仍存在排除预断的立法意图未达到，庭前法官了解案情不全面可能造成“预断的扭曲”，庭前审查的内容不确定，以及实体审查不能排除而可能导致新的“庭审走过场”。根据存在的问题、目前的条件，借鉴国外的制度，可实行“三步走”的庭前程序改革。第一步是实行全面移送材料、建立审前讨论会制度等改良性措施；第二步是借鉴“起诉状一本主义”，减少材料移送内容，实行基本的程序审；第三步是待条件成熟，建立预审制度，并且实行预审法官和庭审法官相分离，切实贯彻排除预断原则，。

    庭审调查和辩论程序中，一系列有争议的问题需要解决。一是庭审顺序如何确定。就此，第一项原则是有恒有变——被告、被害人应首先询问，其余视情灵活安排调查顺序；第二项原则是先控后辩，举证依次进行；第三项原则是控辩审结合确定具体案件的调查顺序与方法。法官“主导庭审”的提法不妥。二是诉讼异议和诉讼辩论制度。在庭审调查中提出和裁决诉讼异议对庭审的公正性和有序化具有重要作用。我国诉讼异议制度的突出特点是法官的积极干预。诉讼辩论可分为调查阶段的辩论和辩论阶段的辩论，两种辩论具有不同的内容和功能。三是证据移送和庭后“默读审判”及相关问题。目前条件下一定程度的“默读审判”还无可厚非。庭审笔录制作和查阅核实制度应当适应庭审制度变更的需要而改进。四是公诉变更。检察机关有改变、追加和撤回公诉的需要和权利，但应不妨碍辩护权的行使同时在某些环节应接受司法审查。公诉机关撤回起诉后再起诉应符合法定条件。

    人证调查是庭审调查制度的难点和重点。应通过改善作证环境、增强制度刚性、强化书面证言、确立免证制度等强化和完善证人作证制度。鉴于司法的现实需要，应当规范书面证言的运用制度。对证人不出庭的情况下书面证言的使用，应当根据诉讼的原则和现实的情况同时借鉴国外的成熟经验确定合理可行的规则；对书面供证与当庭供证相矛盾时书面供证的运用也应当作出规范，在被告人或证人出庭的情况下书面供证可以作为弹劾证据，在一定条件下也可以作为独立证据。交叉询问是我国庭审制度改革后原始人证调查的主要方法，但由于制度背景的制约我国的交叉询问呈现出自身的特点，如范围和效力有限、多极化、“和合”性以及属于“技术方法型”而非“权利技术型”。完善交叉询问制度须设置运行条件，把握对抗限度，尤其要确立适当的交叉询问规则。如询问相关性规则、反对诱导性询问规则、意见规则、反对复合性问题及其他可能导致混乱的问题的规则，以及不得威胁证人、不得损害证人的人格尊严等。

    法官作为庭审的主持人和裁判者，是庭审的灵魂。法官的庭审权力包括诉讼指挥权、事实查证权和实体判决权。法官诉讼指挥权包括庭审引导权、规则维护权和秩序维持权。法官还具有事实查证权，承担查证责任，但不承担证明责任。法官在事实查证方面应当以听证为主，职权调查为辅。法官当庭一证一认一般限于证据的可采性；对证据的证明能力一般应采用综合认定的方式，而综合认定又可分为当庭综合认证和不当庭综合认证（以刑事判决认证）。法官庭外调查核实证据，作为其职权运用的一种特殊方式，应当遵循法律的限制。在两难的情况下，对证人的询问可以采用庭外开庭的特别方法解决。法官庭外调查所取证据应当再经庭审。由于辩论原则和辩护原则的限制，法官不能随意确定和改变罪名从而造成“突袭裁判”。说理不足是我国多年来制作判决的通病，为保证判决的理性和正当性，制约法官自由裁量，刑事判决应当从事实论证和法理论证两个方面加强判决理由。包括改革制判方式，论证法官心证的形成过程，重点说明证据和事实上的疑难之处；可借鉴“对话——论证”的法理分析模式，判决制作应说明案件性质的判定根据，对情节和双方诉讼意见有合情合理的分析，必要时对法律适用应当有具体的分析和说明。判决书制作因案而异，详略得当。

Abstracts of the Dissertation

  Court trial is the pivot of criminal proceedings and the construction of court trial theories is of important and essential values to the researches on criminal proceedings.

  The court trial part under the new Criminal Procedure Law presents various contradictions and conflicts. Probing into the fundamental theories on the court trial and the contradictions and conflicts in the reality, and researches on the institutional harmony from the macro points of view and institutional remedies from the micro points of view are significant to the improvement and efficient functioning of the criminal proceedings.

  This dissertation for Ph.D. consists of two parts. The first part deals with issues such as elements, functions, values of court trial, fundamental principles and jurisprudence of court trial, comparative studies on the models of court trial in various times and the features of the new court trial model in present China. The second part deals with issues such as public prosecution reviewing procedure prior to the court trial and the basic issues of investigation and argumentation procedure at the court. This part, in particular, discusses the difficult part of the court trial, i.e. investigation of witnesses and the trial and judgment of the judge.

  Criminal court trial refers to the trial activities of the judge with the participation of other participants of the proceedings. In order to function, court trial calls for four chief elements: 1. Subject element. Judge, prosecutor and the accused are the subjects of court trial while the witness, expert witness, interpreter are also the secondary subjects of the court trial although judge is the leading subject of court trial; 2. Object element. i.e. criminal cases; 3. Space and time element. Court trial takes place in the specified space and time, solemnity is the feature of space while continuity is the feature of time. The settings of the space and time of trial does reflect the spirit and model of the trial. 4.Method element. The steps, activities of the participants and procedure by which the court trial can be pushed to completion. Court trial model largely depends upon the correlation of the judge, prosecutor and the defense and their interaction. Purpose of the trial is to settle dispute and the functions of trial are triple: 1. Facts verification; 2.Construction and interpretation of rules of law; 3. Dispute settlement. The target of values of the court trial is objective justness and the realization of litigation efficiency.

  The realization of the court trial functions and the target of values call for a kind of reasonable structure and mechanism whose constituting elements are the principles of court trial. As principle serials, court trial principles can be divided into three parts. Firstly, to construct the court trial frame and form the structural principles as the basis of trial; secondly, to establish the operational principles for the litigation participants to follow during the whole trial process; and finally, to establish principles for the judge to follow in his decision or judgment. Therefore, principles for the court trial may be summarized as follows: 1. Judiciary independence. The judge is free from interference and is only bound by law. 2. Judiciary neutrality. The judge should be free from the bias based upon the interest temptations. The judge should take an impartial stand in its exercise of the judiciary powers. In addition, the judge should be chosen by the means of law. 3. Judiciary supremacy. Owing to his functions and stand, the judge should have the final say in the whole litigation process. 4. Equality between the prosecutor and the defense. This calls for the provision of the equal opportunity for both prosecution and defense to obtain information relevant to the cases under trial. The main path by which the accused may act as one of the litigation subjects is running-in, concoction and integration.

  Reform of the pre-trial proceedings has, to some extent, excluded the pre-judgment phenomenon and at the same time has taken into account the transition from the old to the new system and the status quo of the present judiciary practice. However, there may still exist the possibility that the judge is not well acquainted with the cases, which may give rise to another kind of twisted pre-judgment. In this case, the legislative purpose can hardly be achieved. Additionally, owing to the fact that the judge is not clearly aware of the contents of the cases he is to try, the trial may as well present a kind of formalities. Therefore, to avoid the aforementioned problems, three steps may be taken in the reform of the pre-trial proceedings. The first step is to deliver all the fundamental case materials and to set up pre-trial discussion meeting as the reformative measures. The second step is to learn from the doctrine of plane indictment , deducting the materials to be delivered and realize the review of procedure . The third step is to establish preliminary trial proceedings when conditions are ripe and the preliminary proceedings and trial proceedings should be presided over by different judges, effectively excluding pre-judgment in practice.

  A number of controversial issues need to be solved in the court investigation and argumentation process. One is to determine the sequence of the court trial. The first principle to be followed is that the accused and victim should be questioned in the first order and to adjust the remaining order of the court investigation in accordance with the situation. The second principle is that the prosecution proceeds first then comes the defense and the production of evidence should be conducted accordingly. The third principle is that the judge, the prosecutor and the defense jointly determine the sequence of the court investigation. The judge leading the court trial is not the right proposal to follow. In addition, objections and argumentation system should be encouraged in the trial process. In the court investigation process, it is important to allow objections to be raised or rejected, which will guarantee the justness and right order of the court trial proceedings. Judge’s intervening on his own initiative is the apparent feature of the objection system in Chinese criminal court trial proceedings. Argumentation can roughly be divided into argumentation at the phase of court investigation and argumentation at the defense phase. Argumentation at different phases has different contents and functions. Thirdly, relevant issues with regard to the delivery of evidence and the case reading after trial should be properly addressed. The making of records of the court trial and the reviewing and verification of judgment should tally with the reform of the court trial proceedings. Finally, alterations of criminal charges. The public prosecutor does have the power to alter, to add to or to withdraw the criminal charges. However, the prosecutor’s power should not hinder the right of defense and this power should be subject to the judiciary review at certain phases of the court trial proceedings. The re-prosecution by the prosecutor should comply with law made conditions after the charge or charges have been withdrawn.

  Investigation of testimony is the pivot and difficult part of court investigation proceedings. System with regard to the production of testimony should be improved by providing favorable environment for the production of testimony, by strengthening the written testimony and by the establishment of immunity from giving testimony. Application of written testimony should be standardized, taking into consideration of the present practice. Reasonable and practicable rules need to be drafted for the application of the written testimony (when the witness is not available). This should be done by reference to both the judicial practice and successful foreign experience. There need to be rules with regard to the application of written confessions when such confessions contradict with the confessions given in person at the trial court. When the witness or the accused appears at the court, their written statements can serve as the rebutting evidence as well as independent evidence under certain conditions. After the reform of Chinese criminal court trial proceedings, cross examination is the chief way to investigate original witness. However, owing to the background factors, cross examination may present its features such as the limited scope and effects, concoction and it falls into the category of Technical Type other than Rights Oriented Type. Operational conditions need to be set for the cross examination process which will address properly the issues such as the right of defense and equality between the defense and the prosecution. The principles to be followed in the criminal court trial proceedings are as follows: 1. Trial open to the general public. Conflicts between open trial and other interests should be properly dealt with. Open trial principle may be subject to certain exceptions based upon the public interests or social welfare. Some cases may be partially open to the public. Thirdly, proper choice should be made between the open trial and the freedom of media. Finally, system with regard to the open records of the court trial proceedings needs to be established. 2. Verbalism. This calls for the judge to be present at the court and verbal argumentation. 3. Argumentation and questioning. The court trial should focus on the attack and defense of the prosecution and the accused and the adversary elements with regard to the production of evidence should be encouraged. 4. Continuous trial. Trial should proceed consecutively for the realization of speedy trial and the correct judgment. This would require: 1) Identity between the prosecution and judgment. The court should be confined to the scope of indictment. 2) To judge upon evidence. Criminal trial must be conducted upon the basis of facts and the determination of fact must be based upon evidence; 3) To judge in compliance with the law. Judgment without evidence, judgment not in conformity with the law or judgment of arbitrary nature must be avoided. 5. Judgment favorable to the accused. Under the circumstances where evidence is not sufficient or there are other possibilities, the judge should make the judgment in favor of the accused. The rational for this is to let the guilty go unpunished other than the innocent be punished.

  The structure of the criminal trial may be divided into two types: pre-modern and modern types. Pre-modern type would include:1.Adversary and inquisitorial structure; 2.Mixed structure of pre-modern times; 3. Irrational structure. The main features of this type are: the judge is not independent; cruel or irrational measures are taken to obtain testimony or confession and use them as the basis for the judgment; arbitrary pre-trial custody without procedural safeguards; adoption of the presumption of guilt; the accused has lost his status as one of the subjects of litigation and has no right to defend or plead. Modern model of criminal trial has common reasonable features and can be divided into two main categories: adversary system in the common law countries and the trial model largely dependent upon the powers of the governmental organs, which is to be observed in the continental countries. In addition, the mixed type is to be found in some countries in the world. Different models have different requirements for the objectiveness, litigation justness, litigation efficiency, litigation conditions and litigation resources. As far as reference to certain systems, the mixture element is still the general tendency. Owing to various reasons, adversary system seems to be more favorable to most of the countries.

  The new court trial model in China has certain features as far as the pre-trial proceedings, court trial proceedings, rights of the subjects of litigation and the mechanism of the determination of facts and the rendering of judgment are concerned. It may be reasonable to state that the Chinese court trial model is the compromise between the Chinese traditional, indigenous elements and the adversary and modern inquisitorial elements. To make researches on the court trial mode in China, we should pay adequate attention to the operational conditions and background factors of the country. The reform of the court trial proceedings in China will meet with strong resistance and restrains from the local resources, including that of culture, policy, institution and factual resources. This will lead to the situation where operations in the court trial proceedings are not normalized. The most apparent conflict will lie in the contradiction between the adversary procedure and the pursuit of the truth of the cases. The reform of the model of the court trial proceedings will take the gray form of the Chinese style, in particular, rules for cross examination need to be drafted. For instance, there should be rules of relevancy, non-permission of asking leading questions etc. There also should be rules against intimidation of witness and for safeguarding the dignity of the witness.

  As the one who presides over the trial and who decides the cases, judge is the soul of the whole court trial proceedings. Judge’s power includes its power to direct the court proceedings, to verify the facts and to render judicial decisions. Judge’s power to direct the court proceedings includes its power to lead the court proceedings, to maintain the rules for proceedings and to maintain the court order. In addition, the judge is empowered to verify the facts, to be bound to review evidence although not bound by the burden of proof. The role that the judge plays in the review of evidence mainly focuses on the hearing of evidence other than initiative investigation. The judge is bound by the rules of the admissibility of evidence and the judge will decide on the competence of evidence through comprehensive consideration either by the means of at court and out of court verifications (by the means of criminal judgment). Judge’s investigation of evidence out of court as one of its powers should be restrained by specific rules of law. In the case of dilemma, the questioning of witness may take the form of informal court investigation. The evidence gathered by the judge out of court should be subject to the examination conducted in the court proceedings. Restrained by the principle of argumentation and principle of defense, the judge may not alter charges or counts, which may possibly give rise to a “surprise judgment”. It has been the situation for years that the judgment is not properly reasoned. To guarantee the reason and justness of the judgment and to restrain properly the judge’s discretion, more support should be given to the reasons of criminal judgment from both the facts and jurisprudence points of view. This would include the reform of the making of the judgment, describing the process of how the judge has reached the point of rendering the judgment and highlighting the hard points of evidence and facts. Dialogue-Reasoning Style may be resorted to for the purpose of explaining the basis of judgment and rational analysis of the case materials and the opinions of both the prosecutor and the defense. In case of need, some explanations should be addressed to the application of the specific rules of law. The judgment should vary according to different cases and should be detailed or succinct as the case may be.