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我国刑罚执行变更程序的行政化色彩过于浓重,在很大程度影响到法院审判的司法化属性,导致减刑、假释程序两个层面的阙如。在制度架构层面表现为司法化审理的落实困难,包括提请权与执行权的混同、检察机关的监督不足和法庭审理的形式主义。在司法运作层面则体现为行政化管理的制约矛盾,即减刑、假释的比例与效能失调和相关个人、组织参与司法化审判的困难。借鉴法治国家立法经验,我国减刑、假释程序的司法化改革应当从以下方面着手:进行实体法改革,建立针对不同类型案件的行政模式、司法模式混合的案件分流机制;重构案件审理机制,通过多方参与推动庭审实质化进程;完善机构配置,设立专门法院和检察机构。通过以上三处改革最大限度地使案件的审理去地方化、去行政化,使减刑、假释程序适应“以审判为中心”的新型司法格局。
In our country, the administrative procedure of the procedure of changing the penalty of execution is too concentrated. It affects the judicial nature of the trial of the court to a large extent, resulting in the absence of the procedures of commutation of sentence and parole. At the institutional structure level, it appears that the implementation of judicial proceedings is difficult, including the confusion between the right of remuneration and the executive power, the inadequate supervision of the procuratorial organs and the formalism tried by the courts. At the level of judicial operation, it is manifested as contradictions and contradictions of administrative management, that is, the proportion of commutation and parole, the imbalance of effectiveness and the difficulty of relevant individuals and organizations participating in judicial trials. Drawing lessons from the legislative experience of the rule of law, the judicial reform of commutation and parole procedures in our country should proceed from the following aspects: the reform of substantive law, the establishment of a diversion system of administrative and judicial modes that is aimed at different types of cases; the reconsideration of the case hearing system, Many parties involved in promoting substantive trial process; improve institutional configuration, the establishment of specialized courts and prosecutors. Through the above three reforms, the trial of the case can be localized to the maximum extent and administrativeized so that the commutation and parole procedures can be adapted to the new judicial pattern of “taking trial as the center”.