基于分析控诉方和辩护方为中心审判主体看撤回公诉制度的重构

撤回公诉是一个融合了检察权、审判权、辩护权等的课题,涉及到人民检察院、人民法院、被害人、被告人等多方诉讼主体。司法程序的存在与发展,与程序主体的存在和发展息息相关。我国撤回公诉在立法和司法上的诸多问题,与中心审判主体的定义和选择不无关系。该文提出了中心审判主体界定的一种标准,同时选择以控诉方和辩护方为中心审判主体,以期突破在以审判方和控诉方为中心审判主体的法理基础上而产生的现存制度和程序操作上的一些问题。在推导出撤回公诉制度的一些具体规则的同时,还论述了以控辩双方为中心审判主体来重构撤回公诉制度的合理性。

System Reconstruction of Nolle Prosequi in Criminal Procedure: Taking Prosecution and Defense as Central Trial Subject

Nolle prosoqui in criminal procedure is a subject including prosecutorial power, jurisdiction and right of defense, at the same time involving several action subjects, such as the people's procuratorate, the courts, the victims and the defendants.Since the existence and development of judicial procedure are closely linked to those of procedure subjects, many problems in legislation and judicial practice of our country could be related to the definition and choice of central trial subjects. To resolve or at least to release those problems, which could be regarded as the results from the academic base, that is, con-sidering the prosecution and the defense as central trial subjects, this article provided a new standard to define the central trial subject, and chose the prosecution and the defense as central trial subjects. From the foregoing, this article derived some specific rules of nolle prosequi in criminal procedure, and then discussed to reconstruct the institution of nolle prose-qui in criminal procedure, the rationality of choosing the prosecution and the defense as the central trial subjects.