刑事被告人对质权的制度保障——以刑事诉讼法第四次修改为背景  

Institutional Guarantees for the Criminal Defendant’s Right of Confrontation: Against the Background of the Fourth Amendment to the Criminal Procedure Law

作　　者：成小爱 Cheng Xiao'ai

机构地区：[1]华东政法大学中国法治战略研究院

出　　处：《环球法律评论》2025年第2期120-134,共15页Global Law Review

基　　金：2023年度国家资助博士后研究人员计划(GZC20230819)的研究成果。

摘　　要：对质权是刑事诉讼中的一项基本权利,其核心价值在于保障公正审判。然而,在我国司法实践中,证人未出庭而其庭外陈述被作为裁判依据的现象较为普遍,严重影响被告人的对质权。不仅如此,现行对质权保障机制呈现“职权主导”特征,过度强调法官查明事实的需要,忽视对被告人对质权的保障,导致权利弱化。尽管近年来通过零散的立法和试点实践,刑事被告人对质权的保障有所推进,但未能从根本上解决问题。为此,应以刑事诉讼法第四次修改为契机,重构对质权保障体系,即确立被告人对质权、强化法官通知证人出庭作证义务、建立证人未出庭作证之证据能力否定规则、优化法庭发问规则以及提升辩方有效对质能力,进而推动对质权保障模式从“职权主导”向“权利保障”转型。The right of confrontation is a fundamental right enjoyed by the accused in criminal proceedings. Its core value lies in ensuring fair trials. However, the protection of this right remains insufficient in China's judicial practice. On one hand, witnesses rarely testify in court, leaving defendants unable to confront accusers. On the other hand, under the “judge-dominated” safeguard mechanism, judges have discretion over witness appearance and the initiation of procedures and often reject it as “unnecessary”. As a result, confrontation becomes merely a tool rather than an independent procedural right of the defendant. The insufficiency in the protection of the right of confrontation stems from four factors: First, the lack of explicit recognition of this right in the law, resulting in the insufficient safeguard for it. Second, weak witness testimony rules, which grant high evidentiary value to out-of-court statements. As a result, the negative consequences of the witness' s non-appearance fail to be effectively conveyed to the judicial decision-making link. Third, the “dossier-centered” practice, which reduces trials to formality. Judges' pre-assessment of facts from case files weakens the adversarial nature of trial proceedings. Fourth, prosecutorial dominance, which leads to the equality relationship between the prosecution and the defense, leaving defendants in a disadvantaged position in evidence examination, thus further eroding the right of confrontation. Amid the fourth amendment to Criminal Procedure Law, how to further protect the defendant's right to confront through legislative reform and judicial adjustments has become an urgent issue to be addressed. The path to future improvement includes the following key measures: Firstly, formally establishing the right of confrontation as an independent procedural right and clarifying its fundamental status in the criminal justice system. Secondly, strengthening the judge's obligation to notify witnesses to testify and limiting their discretion in exe

关 键 词：刑事诉讼法修改 对质权 职权主导 权利保障 庭审实质化 

分 类 号：D925.2[政治法律—诉讼法学]