最高人民法院死刑複核全面審查原則再檢視

On the Principle of Full Review of Procedure for Review of Death Sentences in Supreme Court

為確保司法監督的有效性，死刑複核程序確立全面審查原則。近年來為了提高死刑辦案質量，死刑複核全面審查原則被進一步強化。但從死刑複核實踐中不核准率下降以及不核准事由越來越集中於死刑適用不當來看，全面審查原則在確保死刑案件辦案質量方面的作用下滑。這與證據裁判的確立、控辯雙方的參與有關。全面審查原則對刑事司法程序和刑事司法結構的衝擊逐漸凸顯，如全面審查原則帶來刑事訴訟程序重心上移，也使得最高人民法院不堪重負，增加最高人民法院的政治風險。我們可以借鑒有限審查的做法，將死刑複核全面審查改造為重點審查。

The purpose of the principle of full review is to review the judgements of the lower courts. In recent years, the principle of full review is strengthened to guarantee the quality of handling death sentence cases. However, based on the fact that the rate of disapproval declines and the reasons of disapproval focus on the application of death penalty, we can infer that this principle's function of guaranteeing is weakening. The functional weakening of the full review principle might result from the establishment of the principle of evidentiary adjudication and the participation of the accuser and defense counsel in the procedure for reviewing death sentences. The principle of full review would have its impact on the criminal procedure and criminal judicial system. For example, the core of the criminal trial procedure would be transformed into the the procedure for reviewing death sentences, and the Supreme Court would be overloaded and suffer special political risks. Therefore, we can borrow the experience from the strict review, and reform the principle of full review to censored review.