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刑事诉讼中法官为发现真实应依职权对有利及不利被告人的证据一并进行调查。将职权调查的范围片面限缩为对被告人有利的事项,不仅缺乏理论依据,且与刑事诉讼发现真实的目的及法官中立性要求相悖,更会招致司法实践中的困难。法官依职权进行证据调查之所以备受责难,并非错在调查的范围本身,而应从落实法定起诉标准、司法克制及“疑利被告”原则等方面对其进行理性检讨。
In criminal proceedings, the judge investigates evidence of the meritorious and unfavorable defendants, ex officio, in the discovery of truth. It is not only lack of theoretical basis to limit the scope of the power of investigation to one that is favorable to the defendant, but also contravene the real purpose of criminal procedure discovery and the requirement of judge neutrality, and even lead to difficulties in judicial practice. The reason why the judge conducts evidence investigation ex officio is not only blamed on the scope of the investigation itself, but should be rationally reviewed in the aspects of implementing the standard of legal prosecution, judicial restraint and the principle of “suspecting and defending the accused”.