中國大陸地區的刑事和解：司法與立法的互動

Criminal Mediation in China Mainland: Interaction between Practice and Legislation

刑事和解是近年來中國大陸實務探索較多、爭議較大的一種新的處理刑事案件的方式，其產生於對傳統辦案方式的反思，並受到恢復性司法的啟發。各地實踐的刑事和解具有一些共性，並在訴訟階段、案件種類、主持人、參與者和加害人承擔責任的方式方面具有不同的做法。實證研究證明，刑事和解具有化解矛盾、促進回歸社會與防止重新犯罪、保障被害人權利等方面的作用，並對刑事司法制度整體產生積極影響。雖然在表面上類似於附帶民事訴訟和解，但客體的不同決定了兩者的本質區別。二○一二年《刑事訴訟法》增加規定了刑事和解制度，回答了實踐探索中部分但並非全部的爭議問題。中國大陸刑事和解制度的發展歷程為司法實踐與立法的良性互動提供了很好的範例。

Criminal mediation is a widely explored and theoretically controversial new approach to dealing with criminal cases in China mainland recently. It refers to solving cases by which responsible organs handling the case decide not to prosecute, or impose a lighter sentence after the offender obtains forgiveness from the victim and reaches a settlement agreement with victims through confession, apology or compensation. Criminal mediation is derived from practical introspection on traditional methods to solve cases in the context of building a harmonious society and implementing the criminal justice policy of balancing leniency and severity, also inspired by restorative justice. The practice of criminal mediation in different religions has several common characteristics, while differs at application litigation stage, type of cases, participants and ways offenders shoulder the liability. A large-scale experiment prove that criminal mediation has series of functions, including enhancing the restoration of social relationships, encouraging the offender to return to the society and preventing re-committing crimes, protecting victims' rights, and producing positive influence on criminal judicial system. Accompanying with the positive effects in practice, series of controversies on criminal mediation also arose, including breaking basic principles in the field of criminal law, causing negative impacts on the regulatory nature of legal proceedings and providing chance of corruption. Although its appearance is similar as mediation in incidental civil actions with the criminal proceeding, the different objective determine their essential distinction. After longtime exploration in practice, the amended Criminal Procedure Law of 2012 (hereinafter referred to as CPL) makes regulations of criminal mediation. The regulation includes conditions, cases scope and litigation stages to apply criminal mediation, responsible organs' role in mediation and handling methods of mediated cases. These regulations provide legal foundations, responds to some, although not all, of the controversies in practice, which will promote criminal mediation to be applied in much broader scope. These regulations also provide room to do further exploration in detailed operation in the future. The development of criminal mediation in China mainland is a typical example to show the benign interaction between practice and legislation. The legislation evolution approach based on this kind of benign interaction coincides with the reality of China mainland better.