程序性制裁理論的檢討與改造——以《刑事訴訟法》再修改為背景

Review and Reform of the Procedural Sanctions Theory: In Light of the Re-amendment of the Criminal Procedure Law

程序性制裁理論具有強烈的“公權制約與權利救濟傾向”。自2012年《刑事訴訟法》修改以來，伴隨著刑事訴訟理論研究和改革實踐在價值立場和基本問題意識上的轉型，該理論的相對合理性不斷限縮。以《刑事訴訟法》再次修改為契機，有必要對該理論作實質性反思，即擴張對程序違法的關注範圍，調整程序性制裁機械“偏向”被追訴方的傾斜性保障立場，引入即時對抗化的運作機制，設定“程序性爭議”這一上位概念來緩和現有理論面臨的責任主義困境。檢討與改造程序性制裁理論，或許是本次《刑事訴訟法》修改真正貫徹審判中心主義，體現庭審實質化要求的關鍵理論助力。

The theory of procedural sanctions, along with almost all critical perspectives on it (including the theory of procedural legal consequences), exhibits a strong ''public power restriction and rights relief'' bias. These perspectives view procedural legal consequences or sanctions as a significant symbol of the relative independence of procedural law, a form of ''ex post facto punishment'' for procedural violations by public authorities, and a means of ''ex-post relief'' for prosecuted individuals whose rights have been violated. This theory initially aligned with the then-dominant '' dualistic value objective theory'' of criminal procedure and the reform direction focusing on addressing the phenomenon of ''emphasizing substance over procedure'', giving it relative rationality. However, since the 2012 Amendment of the Criminal Procedure Law, with the '' pluralistic value objective theory'' significantly challenging the ''dualistic theory'' and the diminishing explanatory power of emphasizing substance over procedure'' as a reform anchor, the relative rationality of the procedural sanctions theory has been increasingly limited. Nevertheless, neither the introspective research by proponents of the procedural sanctions theory nor the critical opinions offered by other scholars have substantively addressed this ''public power restriction and rights relief'' bias, and there are many common shortcomings. The re-amendment of the Criminal Procedure Law presents an opportunity to break with the long-held consensus in relevant research and inject new content into the theory of procedural sanctions to adapt to new changes, making it more substantial and explanatory. This re-examination necessitates abandoning the dual limitations on procedural violations, expanding the scope to encompass non-rights-infringing and defendant-committed procedural violations. Moreover, the typological thinking should be used to grasp the diverse and heterogeneous connotations of procedural violations. It also requires adjusting the mechanically ''biased'' pro-defendant stance of procedural sanctions and integrating the concept of ''equal arms'' in procedural rights, clarifying the mutual support relationship between them. Furthermore, it is crucial to shift away from the ex-post punishment/ relief mindset and incorporate the litigation objection theory, which emphasizes the immediate adversarial handling of procedural disputes, clarifying the mutual connection between the two. Finally, by introducing the higher-order concept of ''procedural disputes'', the self- limitation of relevant researchers can be broken, and can help mitigate the current theoretical dilemma faced by the responsibility principle. After a series of theoretical reviews and transformations that break away from the consensus, the original theoretical system of procedural sanctions has undergone a substantial expansion. On this basis, through this series of theoretical reviews and reforms, it is possible to move towards a theory of procedural dispute resolution with procedural sanctions and litigation objections as its two main branches, and ''procedural disputes'' as its core category. Compared with the original theory of procedural sanctions, the theory of procedural dispute resolution is more open and inclusive and has a series of comparative advantages. It should be positioned as a meta-theory on par with ''the value of criminal procedure'' and ''the structure of criminal procedure''. Correspondingly, systematically constructing and improving the procedural dispute resolution mechanism in China's criminal procedure may be the key breakthrough point for this amendment of the Criminal Procedure Law to truly implement the principle of trial-centeredness and reflect the requirements of substantive trials.