刑事程序中的透明性与正当性——摆脱对抗制的教条

张帅

1984年生于山东青岛。中国政法大学法学学士，硕士，荷兰乌特勒支大学法学博士。2012 年受国家留学基金资助赴荷兰深造，从事比较刑诉法研究。师从国际刑法协会主席John. Vervaele 教授、欧洲比较刑诉法专家Chrisje Brants教授，以及中国人民大学何家弘教授，并于2017 年取得博士学位。现为上海段和段律师事务所合伙人。

在我国四级法院刑庭均有实习调研经历，对刑事审判实务有较为全面和深入的体会，长期从事相关领域的研究和实践。2018年与荷兰同行一起成立海牙仲裁法庭，致力于在欧洲搭建中文（中国准据法）法律服务平台。2019年加入段和段，负责其海牙分所的筹建工作，同时任乌特勒支大学法学院客座研究员，协调国内外有关单位，就打击跨境网络犯罪以及国内法的域外适用与反制等重点议题展开广泛和深入的学术或实务合作。

来自英美法系的对抗制理念在我国风靡一时。关于何谓“正当程序”，一些对抗制教条逐渐演化为流行叙事，然而其理论预言却时常与我国的司法实践结果相悖。为了理清上述悖论，本书就相关机制进行功能比较研究，并以之为样本检视上述教条在中国是否成立。为了跳出对抗制的论证循环，本书采检察视角，以各国检察官的程序角色和功能作为考查其刑事程序基本宗旨的最主要切面，并从比较法律文化和法律史的角度寻根溯源，发现流行的对抗制教条不但在中国难以成立，即便在其发源地也缺乏足够的理论基础。由此推论：我们应将刑事诉讼程序定义为对真相的官方调查程序，而不是平等的非中立律师之间的私人争端；因此应强调检察官的中立性和主导作用，以及刑事诉讼程序的内部透明性。

目录

中外术语比较辨析 ································································001

1.阅卷与开示 ···························································002

2.审问制与对抗制 ······················································003

3.审判与检察 ···························································004

4.权利与本分 ···························································007

导论 ···················································································008

1.程序透明性与正当性的关系 ·······································008

2.中国的情况 ···························································015

3.研究课题 ······························································018

4.方法论 ·································································029

第一编 中国现状

第1章 中国现行刑事司法制度的基本理念 ·······························041

1.1 概述 ································································041

1.2 中国刑事诉讼的重要原则 ······································043

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刑事程序中的透明性与正当性：摆脱对抗制的教条

1.3 刑事诉讼的主要参与方 ·········································049

第2章 中国刑事程序的透明性 ··············································061

2.1 中国普通刑事案件的程序 ······································065

2.2 普通刑事案件的内部透明性 ····································078

第一编小结 ··········································································096

第二编 典型的对抗制体系

第3章 “纯正”对抗制的基本宗旨 ········································103

3.1 通例：普通法传统 ···············································103

3.2 理念层面···························································104

3.3 制度层面···························································107

第4章 英格兰刑事程序的基本宗旨和内部透明性 ·······················112

4.1 英格兰刑事程序的基本宗旨 ·····································113

4.2 英格兰刑事程序的内部透明性 ·································129

4.3 小结 ································································134

第5章 苏格兰刑事程序的基本宗旨和内部透明性 ······················139

5.1 苏格兰刑事程序的基本宗旨 ····································140

5.2 苏格兰刑事程序的内部透明性 ·································145

5.3 小结 ································································149

第6章 美国刑事程序的基本宗旨和内部透明性 ·························152

6.1 美国刑事程序的基本宗旨 ······································153

6.2 美国刑事程序的内部透明性 ····································160

6.3 小结 ································································168

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目录

第7章 对抗制系统之间的比较 ·············································171

7.1 基本宗旨···························································172

7.2 内部透明性 ························································174

7.3 小结 ································································175

第二编小结 ·········································································177

第三编 结论：重新审视

第8章 中国经典模式中的正当性和公正司法 ···························181

8.1 中国法律制度的历史背景 ······································181

8.2 中国构建正当性的基本模式 ····································192

8.3 中国传统模式的前景 ············································198

第9章 最终结论 ·······························································201

9.1 对比中国和对抗制体系 ·········································202

9.2 未来可行的解决方案 ············································206

9.3 建议方案的可行性和缺陷 ······································213

附录一 导师点评 ·································································220

附录二 相关外国法条索引 ·····················································234

附录三 司法数据统计 ···························································240

后记 ················································································244

参考文献 ·············································································252