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纵观新中国两部刑事诉讼法典及修正案,刑事诉权已由理论探索逐步转为现实。2012年新刑事诉讼法及相关司法解释不仅赋予传统申诉、控告模式新的内涵,而且增加了新的诉权模式,在立法顶层设计上形成了初步的刑事诉权体系。法治背景下的诉权时代有两个基本要求:诉权行为的正当性与有效性;诉权对司法权制约的合理性。反观我国实践,诉权法治时代的到来尚有现实阻碍:刑事诉权仍然处于弱势地位,诉权的表达途径与有效性不能得到司法机关的充分保障,诉权与司法权之间存在不信任甚至产生紧张关系。实务部门需要探索诉权与司法权在当代中国的衡平机制,以期完善人权保障机制的同时,提升司法公信力与吸纳不满的能力。
Throughout two new China’s Code of Criminal Procedure and amendments, criminal prosecution has been gradually turned from a theoretical exploration to reality. In 2012, the new criminal procedure law and related judicial interpretation not only gave new meaning to the traditional appeal and complaint modes, but also added a new model of the right to sue and formed a preliminary criminal procedure system in the top-level design of the legislation. The era of legal right under the rule of law has two basic requirements: legitimacy and validity of the right to action; right to appeal to the judicial constraints of the rationality. In the meantime, the practice of our country has a realistic impediment to the coming of the era of legal right of litigation: the criminal litigation is still in a weak position, and the ways and validity of the expression of litigation can not be fully guaranteed by the judiciary. There is no trust or even tensions between litigation and judicial power. The substantive departments need to explore the balance mechanism between the right of action and judicial power in contemporary China with a view to improving the human rights safeguard mechanism and at the same time improving the credibility of the judiciary and the ability to absorb complaints.