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法的原则是对法所承载价值的最佳化命令,与规则存在质的区别。它以实在法为依据,面向权力(权利)或义务但其适用不能直接得出确定性结果。刑事诉讼法基本原则的提取应当符合法原则的内在规定性,覆盖刑事诉讼全程,体现刑诉法所承载的价值。法、德两国有了《欧洲人权公约》和宪法性文件的双重支持,刑诉法典中即使不将基本原则集中明示也无大碍,而我国语境与此不同,刑诉法基本原则仍应坚持集中规定的方式。应当按照法原则的内在规定性,从技术上予以优化,对现行法的原则设置予以合理调整。
The principle of law is the difference between an order of optimization of the value carried by the law and the rule. It is based on the law of the good and faces the power (right) or obligation but its application does not directly give a definitive result. The extraction of the basic principles of criminal procedure law should conform to the inherent stipulation of the principle of law, cover the whole process of criminal proceedings and embody the value of the criminal procedure law. France and Germany have the double support of the “European Convention on Human Rights” and the constitutional documents. Even if the basic principles are not expressly set forth in the Criminal Procedure Code and the conditions are not the same in our country, the basic principles of the Criminal Procedure Law should still be Adhere to the central provisions of the way. It should be technically optimized in accordance with the inherent stipulation of the principle of law and a reasonable adjustment should be made to the principle of the existing law.