中国农村合作化运动及其解体 (The Collectivizationa and De-collectivization in Rural China)/周大勇

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Student:Dayong Zhou

dayong_77@hotmail.com


The Collectivizationa and De-collectivization in Rural China

周大勇 (Zhou,Dayong)

Abstract: the process of de-collectivization took place 25 years ago, however it was uncompleted, which determined that china has to make great effort to continue his rural reform, in order to liberate the peasant and the status of rural region as the Party promised. In China, the non-privatization reform occurred along with the de-collectivization was a uncompleted reform, which remains the defects of both collectivization and small-scale peasant economy, therefore it restricts the development of the rural society, however, the current system seems unable also reluctantly to change it. This paper intents to introduce the process of the collectivization and the most important rural reform in this century, namely the de-collectivization, the demonstrates the progression of de-collectivization, its characters as well as the problems left to be solve.
Keywords: collectivization De-collectivization collective ownership incomplete

Foreword
I am pleased that I am allowed to write the term paper about China. China was influenced by Marxism and walked in detour of history for half century. Before Marxism bankrupted in former Soviet Union and Eastern Europe countries, China had adopted a different way to reform from those countries. Because of the difference in aspects of historical evolution, political forms and natural environment, it’s hard to compare the rural society of China with these former socialism countries directly, also, the progression of collectivization and its end are different in two continents.
Rural china before collectivization
Collectivization was a mark system of the socialist state. Although in the era of Utopian socialism, Robert Owen for example has already attempted to set up the collective farm, but it wasn’t pursued by force strength of government. Even the founder of communism Marx didn’t agree that communism could be realized in undeveloped countries with extremely poor productivity . It was Russia, the serf country, in which Communist took power without adequate preparation; collectivization was implemented by force, in order to consolidate the rule in grass-root countryside. This experience has influenced China and Eastern Europe, because one of the merits of the collectivization lies in being easy to be managed, the other lies in being easy to deprive peasants.
China was a backward country, which suffered from ignorance and war for centuries. Throughout the centuries some 80 to 90 percent of the Chinese population were farmers and live in one of some 900,000 villages, which have an average population of from 1,000 to 2,000 people. Villages were not self-contained, self-sufficient units. Clusters of villages centered on small market towns, which linked them to the wider economy and society by providing not only opportunities to buy and sell but also opportunities for entertainment, information, social life, and a host of specialized services. The traditional Chinese elite, often referred to in English as the gentry dispersed across the country and often lived in rural areas, where they were the dominant figures on the local scene, normally ruled villages. Although they held land, which they rented to tenant farmers, they neither possessed large estates like European nobles nor held hereditary titles. However, they traditionally interpreted central policies and national values for villagers. As in feudal relationship, the peasants and gentry live depend on each other. Gentry provided land to poor peasants and tenant, and work with rich and middle peasants to secure the order in village, for instance opening school and building basic infrastructures to maintain there social status. In Chinese history, at the beginning of very dynasty, the land relationship between landlord and poor peasants were comparably fair, that meant, peasant have parcel farmland to live on. But land tended to be concentrated on end every dynasty, then there might be a peasant uprising led to a new dynasty and retribution of land. This is the basic clue of social evolution in China before communist period.
After the Chinese Communist Party came into power in mainland, it had to keep its promise, which it made during the period of war to encourage the peasant to join the army, that it would gave peasant their own land. The first major action took place from 1940s to early 1950s. June 1950, a new Land Reform Law of new People’s Republic was promulgated and stipulated nullification of the feudal land ownership system, and institutionalization of the system of land ownership by peasants, in which the Party sent agents to every village to carry out the land reform policy. This in itself was an unprecedented show of political power and the resolution of transform an old society. The reform was successful, because the peasants supported the policy; most of them had been waiting for the reform for long time. In the light of the reform law, land were redistribute from the landlords, land-owning trusts or wealthier families to the poor segments in the same village; village elites, who might be expected to go up against the Party and its programs were brought down; new leadership was established by poor peasants who showed the most loyalty to the party's goals; instead of kinship group or patron-client ties, class status became new relationship among villagers.
the process of Collectivization
However, the Party’s leaders were not satisfied with the privatization of land, at one hand, such ownership, according to the doctrine of socialism, should have been abolished in the state of socialism, at another hand, private ownership of small peasantry had no function of property accumulation for the country. At that time, in order to accelerate the construction of socialism, China had launched The First Five-Year Plan after the Soviet model; heavy industry development was profound stressed since the leaders of Communist Party regard socialist country as a country with developed industry sectors. However, the situation in early 1950s was not ideal for a new country. Pressing of needs for food in a country with burgeoning population, domestic capital for investment, and purchase of Soviet-supplied technology, capital equipment, and military hardware. To satisfy these needs, collectivize agriculture was put forward. Collectivization was regard as a method to turn countryside to stabile backing, which can be managed as semi-military and had rare contact with outside, so that the government could press the price of agricultural products by means of scissors difference between cities and countryside, and seize huge numbers of profit from agriculture economies to support the industrialization in city. At the same time, the government had already nationalized banking, industry, and even trade. Private enterprise was already virtually abolished in national wide.
Despite internal disagreement as to the speed of collectivization, preliminary collectivization was launched since 1952. China's peasantry saw Chairman Mao and the Communist Party as heroic much more than Russia's peasantry had seen Stalin and the Bolsheviks as heroes, and through 1956 the peasantry cooperated with the Party. There was none of the resistance and warfare that had accompanied the collectivization of agriculture in the Soviet Union.
The collectivization of agriculture was basically completed with the establishment of the people's communes in 1958. The People’s Commune system was defined as a unity of politics and production, in which all members of the commune jointly owned property. Essentially, the commune system was based on private contract of its members and the principle of voluntaries and mutual benefit, however, it turned out yet as coercive institutional arrangement, which was made by government with political power. In the movement to achieve the People’ s Commune, peasants had no choice whether or not to join.
Communes were designed as large, embracing scores of villages created by combining some 20 or 30 advanced producers' cooperatives of 20,000 to 30,000 members on average, in some cases the membership varied from as few as 6,000 to over 40,000. It was instituted as an organization with functions of the lowest level of local government and the highest level of organization in agricultural production. Communes consisted of three organizational levels: the central commune administration; the production brigade , and the production team, which generally consisted of around thirty families. This kind of institution was an organization of hierarchies, in which the commune acted as political unit and top manager, the brigades played role of co-coordinators between the commune and the basic production teams. The production team was basic units of production and accounting. Since the people’s commune system was a tool established to extract resources from agriculture sector for industrialization, as a result, it neglected peasants’ incentive completely. In order to let the people’s commune system run, the central government designed an relative effective mechanism to encourage managers in each hierarchy to work enthusiastically, yet, in each level, the managers were treated differently and there was a clear difference in aspects of identity and welfare between the managers of the commune and of the brigades or production teams.
The commune was defined as administrative organ and executed the central government’s orders, and paid from central government’s budget, therefore the managers in the level of commune were “state cadres” , that means they were formal governmental officials and got wage monthly. These state cadres could be promoted and became officials of governmental divisions in higher level. Brigades and production teams were collective economic organizations, their running expenses came from production teams’ tribute. Managers in brigades level were called “collective cadres” . They were remunerated in their own production teams according to their labor quotas. Their wage was paid in the form of products instead of money. Managers in production teams were“team cadres”, they were also members of the production team. They worked as peasant like their workmates, and were paid in products according to labor quotas. Team cadres could be promoted to collective cadres. Collective and team cadres had little possibilities to be promoted and became members of state cadres. Nevertheless, as collective and team cadres had some privileges. For example, collective managers had the power of assigning state’s delivery quotas and production tasks among production teams, they determined who could enrolled in state-owned factories, universities and army. The production team managers executed the power of assigning work and distributing products among collective members. Furthermore, in the period of many political movements and class struggles, the identity of cadre could protect their families, relatives and themselves from being denounced and bullied (Tan, 1999).
At beginning, the commune itself was decorated as the representation of socialist society and had all merits of public ownership. Although nearly all the private property had been deprived, peasants had to praise the new system profusely. it was true, most poor peasants found that their lives changed, by eating in the public dining they didn’t need to worry about their own budget anymore, and by working together, they were not necessary to try their best. Following propaganda appeared in newspapers everyday:
The public dining halls are distributed in a way that members need walk only a few minutes from their homes to take their meals. On the freshly whitewashed walls of the one on Shihfuchien Street, a typical establishment, there is a big slogan in red, which reads, "High Spirits for Higher Production!" Its kitchen, to which the visitor is drawn by the aroma of food and the clatter of pots, is managed by Tu Hsiu-chen, the first volunteer cook, who has since learned large-scale catering from the chef at one of the city's restaurants.
The walls of the spacious dining room are decorated with paintings, as a home might be. Its tables and chairs, though simple, are scrubbed to a shining cleanliness. The food is fresh and tasty -- vegetables are grown by the commune itself. The staff make a special point of studying the diet and preferences of old people, children, nursing mothers and members with ailments. There is a separate room for parents with small children, provided with low tables for the little ones.( People’s Daily, 1958)
However, in practice, this ideal, extremely centralized form commune didn’t keep running well in most areas. Very soon it became clear that in most cases the communes were too clumsy to carry out successfully all the managerial and administrative functions that were assigned to them. The cooperative led to low-efficiency, the advantages of large-scale productivity didn’t arrive as peasants anticipated, productivity began to drop and discontent emerged. The reason lies in insufficient utilization of resources and lack of incentive of peasants. At one hand, the output of cooperation comes from all members’ work, in which the tribute of single household is difficult to be measured. So that opportunism like shirking happened naturally very frequently. An effective way to prevent shirking is to have all members supervised, but the seasonal work and spatial diversity of agricultural productive activities make it difficult to totally supervise. At the other hand, although brigade and production team cadres were obliged to complete state’s planning and all kinds of deliveries, the control right and residual claim of the people’s commune system were in the state’s hand, these cadres at grass-level could not design any reasonable incentive mechanism to encourage peasants to work hard and produce according to reasonable natural condition, such as soil, irrigation and farm year. The way left for brigade and team cadres was to punish peasants by struggling against them or maltreatment. But the brigade and team cadres also belonged to members of production teams, they and their families lived in the same community with their subordinates as well, so punishing peasants could also make themselves in trouble. Moreover, under the property rights structure of the commune system, the rest of output was not belong to the commune, brigade or even production team, but to the governments of higher level. This made the supervisors’ effort unrelated to any reward. As a result, even the supervisor himself has not enough incentive to work and shirk himself sometimes. In a word, under such conditions of poor supervision, in which all the work was distributed equally among all members at the lowest level--production team, shirking became every member’s rational choice and further weakening the efficiency of the system (Lin,1990).
De-collectivization
To prevent peasants from slow down, shrinking and escaping in work, and assure the system could keep on moving, the party collected all productive equipments and forbid members in people’s commune engaging in private production and business on the one hand, and at same time deprived peasants’ right of migrating from countryside to city or between districts by means of household registration on the other hand. Nevertheless, such policies had no effect on improving incentive of peasants, but they formed at least political press on very member of people’s commune, because it turned out that everyone’s only routine is to stay in the commune and finish one’s task. Without the right to leave or get better than others, peasants commonly chose to work with little effort, e.g. a passive method, to evade production tasks assigned by leader. Little accumulation and shirking made countryside widely fall into poverty , rare rural region had good conditions to develop industry or to improve commerce, infrastructures went worse, productivity sank quickly. The most serious crisis for agricultural collectivization happened between 1959 and 1961. GNP decreased from 213.8 billion Yuan in 1958 to 180.0 billion Yuan in 1962, with an average annual reduction of 15.1% in gross industrial production value and an average annual reduction of 19.3% in gross agricultural production value from 1958 to 1960. Owing to the serious shortage of food, a great famine took place in the whole country and at least 30 million residents died (Tan, 2000). Discontent with such system broke out, in some areas, peasants didn’t want to relied so heavily on orders from above and made so little allowance for local conditions or local initiative. The severe crisis forced the Party to adjust their policies. From 1961 on, commune functions were reduced to administration and co-ordination, production team was confirmed as the basic unit of accounting, certain production decision making was delegated to production teams, which were allowed to retain some income to overcome problems of egalitarianism; households again allowed to have small private plots and sidelines for planting vegetables, and a limited opening markets for transaction between urban and rural areas. However, these adjustments didn’t mean to change the system of people’s commune, but only to prevent peasants from rebel. From 1966 to 1976 China suffered the disaster of Cultural Revolution , there were large institutional swings took place in this period, in which co-operative moved from small to large and from team to brigade to commune again, local free markets, sidelines and private plots was prohibited again, and political factors had a great influence on production decisions.
In late 1970s, after the Leader Chairman Mao passed away, the requirement for improving agricultural productivity came alive. Administrators in provincial-level units with extensive regions of low yields and consequent low standards of living began experimenting with new forms of tenure and production. To avoid frontal conflicts of wide scope with government’s policies and the main ideology, a gradual approach was adopted. The first step of reform was to divide the production team into groups and to fix yield quotas for each group. Each group signed a contract with production team, the contractual items included the conditions of using land, laborers, farm tools and draft animals, the expenditure, labor contribution, rewards for excessive labor contribution and so on. After completing the tasks assigned by the production team, the output could be distributed among work groups according to their labor quotas. And then, the further solution was put forward, namely the typical form of fixing quotas called “all-round contract”, which was initiated by a few brave peasant secretly in Fengyang county of Anhui province. this contract regulated, household was allowed to cultivated a certain parcel farmland in the group, if grain quotas assigned by the state and the collective accumulation were accomplished, the household could own all the residual output. In the light of the contract, peasants were given directly stimulation to produce. The experiment was deemed successful and popular, and it soon spread to all districts.
At another side, political situation was appropriate with the reform form below. In the Eleventh National Party Congress, held August 12- 18, 1977 proclaimed the formal end of the Cultural Revolution, blamed it entirely on the Gang of Four , and reiterated that "the fundamental task of the party in the new historical period is to build China into a modern, powerful socialist country by the end of the twentieth century." The reformer Deng Xiaoping was elected as vice chairman and back to political stage and suggested a series of reform plans, though many contradictions still were apparent, change of policy was regarded as necessary. Rehabilitations of Deng's associates and others sympathetic to these reform plans were stepped up. Not only were some of those purged during the Cultural Revolution returned to power, but also individuals who had fallen from favor as early as the mid-1950s were rehabilitated. It was a time of increased political activism.
In November 1980, the Central Committee of Communist Party of China issued the document Some Issues of Further Reinforcing and Improving the Responsibility System in Agricultural Production. This article manifest the first time that the Party accepted the production responsibility systems developing in practice. In the document fixed output quotas of farmland for each group and responsibility contracts in some specialized obligations were indicated, at the same time, the fixed output quotas for household was also regarded as positive. Under the encouragement of government’s policy and related support measures, plenty of production responsibility systems developed very rapidly in rural areas. In 1981, a wide deeper reform called fixing the contribute quote for each household (bao gan dao hu), which was much more radical, was implemented. In accordance to the system, all collective lands in production teams were to be distributed among households based on their population or laborers. The households could manage the lands, made production decisions by themselves, and bore the results. When tasks assigned by upper government and the collective accumulation, e.g. a certain quantity of grain and livestock, were completed, the remained products could be owned by the households and not distributed among members in the production team. Moreover, if the household made sure that they have enough ration, they had right to sell the left grain to state owned agricultural enterprises or consume them as they want, usually feeding livestock or making wine for example. That meant the model from Fengyang was finally admitted by Party. In October 1983, the Party and the State Counsel issued the document Notice of Separating the Co-operative from Politics and Setting Up the Township Government and required the cooperative to separate from local government. The act ordered that the people's communes were replaced by administrative townships. By the end of 1984, 98% of production teams had taken the reform of Household Responsibility System. It was until then, the collectivization system was dismantled completely.
Some Characters of De-collectivization and Problems left
No restitution
Yet, de-collectivization and the implement of the household responsibility system is neither a reform of the ownership of land nor a process of privatization. As we have mentioned above, after the Communist Party set up its own government in 1949, it started land reform and distributed lands to the poor from landlords and rich peasants. Peasant acquired parcels of land according to the labor forces, then land were registered under name of each household. Before the eve of collectivization, most of lands in rural China were legally privately owned. But when de-collectivization began, peasants did not get back their former lands again. The household responsibility system only distribute the right of manage and benefit of lands among households according to their population or laborers. So, the de-collectivization in China did not like that in most of East European countries such as Bulgaria, Czech, Hungary, Poland, Romania and Slovakia, but like that in Albania. That is to say, there was no restitution of land. However, in former East European Countries, whether restitution was implemented or not, the de-collectivization had symbiosis with privatization. In China, although during the process of de-collectivization there were in reality some opinions that lands should be restituted, such voices were not accepted, nor even discussed.
The reasons why restitution of land in the de-collectivization of rural China did not happen may lie in some historic reasons. First of all, although peasants in China had private ownership over lands before the collectivization, large percent of peasants owned farmlands that did not belong to them before, they obtain them from political transformation. Theoretically, violence can’t consist the legal reason of transfer of ownership over real estate, therefore even after the terrorize during the land reform at beginning of 1950s, the private ownership of lands, which was made out by the communist government, had not yet became stable and commonly accepted. However, the former landlord class had rooted off during the political movement, land contacts and register books of land title had been destroyed, no one dare to challenge the power of Communist Party anymore. Since the collectivization began soon after the land reform, the new established owner relationship was broken again, when de-collectivization came about, without supports from the central government, most of peasants only took the household responsibility system as another chance of equally distributing lands, just like the land reform in 1949. As to descendants of former landlord class, they might have not forgotten the experience of their poor ancestors’: claiming private right before the Party which regarding public ownership as universal truth is a dangerous deal.
Secondly, different from most country in former communist east European countries , in which farmers’ nominal ownership of lands was remained, even though their lands were requisitioned in collective farms without any payment, and so that it was easy for peasants in these countries to take back the land when the collective farms went over. On the contrary, in China, private ownership of land was totally abolished as soon as the people’s commune system was set up, after 20 years, the collective ownership had already fest basis. As a result, the transaction costs of restitution so high as to wipe it out. That means, even a peasant want to take back the former farmland which belonged to them, it’s very hard to him to collect the relevant evidences to support his claim, moreover, there was no legal justice process to support such application. So normal farmer would rather to accept the Household Responsibility System.
Finally, the key reason lies in the socialism system itself. Even though the Communist Party of had poor performance in leading the country and its people to wealth and happiness during socialist revolution, Chinese people have taken socialism as the characteristic of the country for grant, after all the slogan “ Socialism saved China” has been deeply impressed. So that even after the Culture Revolution, most people still propped up the Party. The Party led the rural reform and decided the de-collectivization. However, the reform is a “liberation of the rural productivity”, which suit the requirement of the Party. Because the Chinese Communist Party insisted that his mission is to realize socialism, and socialism is based on public ownership system. Collective ownership was deemed as one form of public ownership in rural regions, so that as China kept on the road of realizing socialism, “land in rural areas belong to collective” was certainly remained after rural reform, and regulated in the Constitution of 1982, which is valid till now.
At the time of de-collectivization, the dissolution of people’s commune and the wide implement of responsibility system were regard as a great innovation. According to the statistic, The Household Responsibility System did bring about a more prosperous agriculture in China. From 1978 to 1984, grain output in China increased at an annual average rate of 5% and the gross value of agriculture by 7.7% (Lin, 1997). In contrast with former European countries, the de-collectivization seems bring more benefit to Chinese peasants at beginning. So that at that time, rare peasant did realize that such a reform without transformation of ownership was incompletely. However, The natural shortcomings of the de-collectivization would surely bring a series of problems.
institutional problem: land distribution
As we showed above, the de-collectivization ran smoothly and the introduction of Household Responsibility System has got a great success, although it could not address everything as only an institutional innovation. After several years of practice, it has been already proved that there are a number of weaknesses and limitations remained from the incompletely de-collectivization. One has to confirm, that the collective ownership and contract system led to the inequity in both economic and political features.
In economic view, during the de-collectivization, farmland was distributed to individual households in form of fragmented farming units. The principle of land distribution was derived directly from collective ownership. Farmland in a village was owned by all of its members collectively. As a result, every member had equal right to claim on distribution of the land according to certain norm, which was based primarily on the size of the peasant family. In reality of China with abundant population and limited land, the amount can be distributed to each household was very small. Moreover, land differed from each other in terms of soil fertility, irrigation conditions, location and so on. In many cases, a household had to obtain pieces of land from each of the grades. as a result, the sum was not only insufficient but also disjointed and scattered around villages. Large areas of cultivated land were wasted in the form of paths and boundaries separating households' contract field. A survey conducted by the Chinese Ministry of Agriculture indicated that in 1986, among 7983 sample villages from 29 provinces, average cultivated area per household was 0.466 ha (7 mu) fragmented into 5.85 plots, each plot on average 0.08 ha (1.2 mu) (Ministry of Agriculture of China, 1993) . This fragmented structure of family farming has remained largely untouched after implement of contract system and has detained the possibilities of using relatively advanced mechanical agricultural equipment and infrastructures.
Under such system, farmers turned to be short-term in action. According to the distribute rule of land in household responsibility system, land is to distribute depended only on villager status, babies and villagers' new-comer such as newly married bride from other villages were all eligible claimants, which having equal rights to share equal amounts of land in this village; on the contrary, when a villager left or died, the right of land claim would automatically withdraw. As population increased, villages had to readjust the distribution structure, which further subdivided the farmland . The endless redistribution of farmland resulted in many problems, including: 1) the situation of a small and fragmented farming structure further deteriorated; 2) worrying about the risk of losing their land as well as investment, farmers had little incentives to improve land conservation and agricultural infrastructure - irrigated land, one of the most significant components of agricultural infrastructure in China, remained almost unchanged during the 1980s; 3) farmers over-exploited the soil to pursue short-term profits; 4) the course of land redistribution was also costly, it required labor and time in organization and execution. (Chen, 1999)
Another problem is that farmland was generally badly endowed with the appropriate human capital. Since egalitarianism was the general leading principle rule, which gave little consideration to interfamily differences such as labor capability, education and individual preference . As a result, some large households with a incomplete labor force could have comparably much more land to cultivate, meanwhile other smaller households, above all those specialized in agriculture, could have only inadequate land for full employment. Such kind of problem was much worse in rural areas experiencing rapid township or village industry and urbanization. In those region there was often deterioration in the agricultural labor force since most of capable labors tended not to work at home as a farmer. There were many who did not give priority to cultivation and at times even let the land lie unused. Consequently, the farmland was underutilized .
Upon preceding analyzing, we can see that, in order to pursue egalitarianism on surface in distribution of land, in the process of the de-collectivization sacrificed economic efficiency. Thus, if the land was private, then those difference arouse from distribution will decease after enough time, because the free market will lead to equal efficiency through the choose of market. However, such political background lacked from beginning on, so that the shortcoming of a non-privatization de-collectivization can’t be corrected or even be enlarged because of problem of political system.
One of the main reason is political structure over the collective ownership. First at grass-root level, it was usually the village head, who takes the power to decide distribution since decentralization. So that the cadre family or their relations will surely benefit from the distribution. Having a cadre in the family seems to be a certain prerogative in using their political status to accumulate wealth. At one hand, Village cadres may allocate more fertile parts of the village land to themselves and determined more favorable grain sales quotas for themselves. And also, cadres have more opportunity to build personal relationship with higher level and other important departments, rural credit banks or transportation companies for example, so that they have more chance to obtain material benefit than normal peasants. As we see, most of collective enterprises and private economies in rural areas have tight relationship with local governments, at the basic level, with villager cadres, most rural enterprisers are villager leader themselves. Furthermore, cadres and their relations generally tend to break the policy of birth control, because they are capable to support more family members, and their kin will strengthen their economic and political power in return.
At another hand, though according to the election regulation of rural cadre in china, these village cadre should be elected directly by villagers, who have common interest in the community, this rule has been almost never put into practice. Under one Party system and public ownership system, all important resources are gathered in the Party’s hand, as a result, instead of election, the opinion from higher level plays a significant role, in order to carry ort the policy of Party efficiently. In fact, two factors determine the candidates in appointment of village head, one is the relationship with official of higher level, and the other is kinship. Consequently, cadre family takes all advantages to maintain their power and status through such appointment. So, cadres in rural China don’t represent the benefit of their village members, but the power of the Party as well as the family, there is no possibility for peasants to claim equality or save their from suffering as a peasant.
In a word, after a short flourish in rural China, which came along with the de-collectivization and the implement of Household Responsibility System, most peasants have to face the irrational occupation and distribution system of farmland and the political system, which is impossible to change. Besides there was strict limitation prevent peasants from abandoning their responsible land and rushing into cities, so that the peasants found it is hard to change their situation or turn it more better and free. This may explain why in rural china exists always the tendency of over population but the income of household began to decrease only after less than 10 years from the de-collectivization. As a result, land reform in China has emerged as a difficult issue in rural areas of exchange between social equality and economic efficiency. It seems obvious that since the mid-1980s the wide rural society has been caught in this predicament: where social equality or equity worsened, and at same time economic efficiency held back.. According to statistics, average net income in countryside has been slowed down for years. In 2000, the household average income only reached 272 dollars, but the Gini coefficient in China base in urban and rural areas rose from 0.21 in 1978 to more than 0. 46.
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贵州省生猪屠宰管理办法

贵州省人民政府


贵州省人民政府令第52号


  《贵州省生猪屠宰管理办法》已经2000年8月22日省人民政府常务会议通过,现予发布,自2000年10月1日起施行。

                              省长 钱运录
                           2000年9月7日
             贵州省生猪屠宰管理办法



  第一条 为了加强生猪屠宰管理,保证生猪产品质量,保障人民身体健康,根据国务院《生猪屠宰管理条例》(以下简称《条例》)和有关法律、法规,结合本省实际,制定本办法。


  第二条 在本省行政区域内从事生猪屠宰和生猪产品销售的单位和个人,必须遵守本办法。


  第三条 对生猪实行定点屠宰、集中检疫、统一纳税、分散经营的制度。
  鼓励和推广定点屠宰厂(场)实行规范化、工厂化、机械化屠宰生猪。


  第四条 省人民政府商品流通行政主管部门负责全省生猪屠宰的行业管理工作。
  县级以上人民政府商品流通行政主管部门负责本行政区域内生猪屠宰监督管理工作。
  乡(镇)人民政府负责乡(镇)生猪定点屠宰的具体管理工作。
  畜牧、工商、税务、环保、卫生、价格、公安等有关行政主管部门依照法律、法规的规定和各自的职责分工,共同做好生猪屠宰管理工作。


  第五条 定点屠宰厂(场)的设置由市、县人民政府根据“统一规划、合理布局、有利流通、方便群众、便于检疫和管理”的原则确定。
  定点屠宰厂(场)设置的数量为:贵阳市(不含开阳、修文、息烽县和清镇市)1-3个;地、州、市人民政府(行署)所在地城市1-2个;县(市)人民政府所在地城市1个;乡(镇)人民政府所在地1个。


  第六条 屠宰上市销售的生猪,必须在定点屠宰厂(场)屠宰;农村地区自宰自食的除外。
  地处偏僻、交通不便、肉食供应量不大的乡(镇)人民政府所在地以外是否实行定点屠宰,由市、县人民政府确定。


  第七条 设立定点屠宰厂(场)的单位和个人,必须向市、县人民政府商品流通行政主管部门或乡(镇)人民政府提交书面申请和有关技术资料,由市、县人民政府商品流通行政主管部门会同有关部门审查同意后,报市、县人民政府批准,并报省人民政府商品流通行政主管部门备案。
  经批准设置的屠宰厂(场),必须到环保、卫生、畜牧行政主管部门办理相关手续,凭商品流通行政主管部门颁发的《定点屠宰证》,到工商行政管理部门申办营业执照后,方可营业。


  第八条 定点屠宰厂(场)选址,必须远离生活饮用水的地表水源保护区、居民集中区等区域,不得妨碍或影响所在地居民生活和公共场所的活动。


  第九条 定点屠宰厂(场)必须具备下列条件:
  (一)有与屠宰规模相适应的充足水源,水质符合国家规定的卫生标准;
  (二)有符合国家设计、安全、卫生标准规定的待宰间、屠宰间、急宰间、屠宰设备、生猪和生猪产品专用运载工具;
  (三)有取得县级以上人民政府卫生行政主管部门出具健康证明的屠宰技术人员;
  (四)有经省人民政府商品流通行政主管部门考核合格,并取得其核发的肉品品质检验人员资格证书的肉品品质检验人员;
  (五)有理化、微生物等常规检验的检测仪器,备有适用的消毒药品和消毒设施,健全的卫生消费制度;
  (六)有病猪、死猪及其产品的无害化处理设施和排污设施;
  (七)有符合《中华人民共和国动物防疫法》规定的防疫条件。


  第十条 县级以上人民政府商品流通行政主管部门应当配备必要的屠宰行政执法、监督人员。屠宰行政执法,监督人员应当经培训考核合格,并取得贵州省行政执法证、行政执法监督证,实行持证上岗。


  第十一条 省人民政府商品流通行政主管部门负责对生猪屠宰行政执法、监督及肉品品质检验人员的培训、考核、发证等管理工作。


  第十二条 市、县人民政府商品流通行政主管部门会同有关部门负责定点屠宰厂(场)标志牌的管理;市、县人民政府商品流通行政主管部门负责肉品品质检验合格验讫印章的管理及《定点屠宰证》的年检工作。


  第十三条 定点屠宰厂(场)屠宰生猪的宰前宰后检疫,由动物防疫监督机构依法实施,出具全国动物防疫监督机构统一使用的检疫证明,并加盖全国统一使用的验讫印章。定点屠宰厂(场)屠宰的生猪,必须具有生猪产地动物防疫监督机构的检疫证明;未经检疫的,由动物防疫监督机构依法补检。
  宰后生猪产品的肉品品质检验依照《条例》第十一条规定由定点屠宰厂(场)自检,接受卫生行政主管部门监督。


  第十四条 定点屠宰厂(场)的肉品品质检验,必须与屠宰同步进行。检验合格的肉品,由厂(场)加盖肉品品质检验合格验讫印章;未经检验或经检验不合格的,不得出厂(场)。对检验不合格的生猪产品,按照《条例》和国家有关规定进行处理。


  第十五条 定点屠宰厂(场)必须按照国家有关规定,进行规范化屠宰。地、州、市人民政府(行署)所在地城市和人口数量较多的县(市)人民政府所在地城市应实行机械化屠宰。


  第十六条 定点屠宰厂(场)不得屠宰、加工病死、毒死、死因不明的生猪和生猪产品,不得对生猪和生猪产品注水或注入其他物质。


  第十七条 定点屠宰厂(场)提供屠宰服务,按规定收取费用。具体收费标准按省价格行政主管部门的规定执行。


  第十八条 定点屠宰厂(场)应按国家有关规定纳税,任何单位和个人不得违法向屠宰厂(场)收取任何费用。


  第十九条 进入市场的生猪产品,必须具有动物产品检疫合格证明、动物产品检疫合格验讫印章、屠宰厂(场)的肉品品质检验合格验讫印章,方可上市销售。


  第二十条 对违反本办法的,由县级以上人民政府商品流通行政主管部门及其他有关部门依照《条例》第十五条、第十六条、第十七条、第十八条规定及有关法律、法规进行处罚。


  第二十一条 以暴力、威胁方式阻碍商品流通行政主管部门工作人员或其他行政执法人员依法执行公务的,由公安机关依法予以治安处罚;构成犯罪的,依法追究刑事责任。


  第二十二条 商品流通行政主管部门和其他有关部门的工作人员滥用职权、玩忽职守、徇私舞弊、索贿受贿的,依法给予行政处分;构成犯罪的,依法追究刑事责任。


  第二十三条 本办法所称生猪产品,是指生猪屠宰后未经加工的胴体、肉、脂、脏器、血液、骨、头、蹄、皮等。


  第二十四条 在尊重少数民族风俗习惯的条件下,牛、羊也应实行定点屠宰。
  牛、羊实行定点屠宰的,按照本办法执行。


  第二十五条 本办法自2000年10月1日起施行。

我国“上诉不加刑原则”若干问题探讨

作者:许建添 华东政法学院诉讼法学硕士研究生


【摘要】上诉不加刑(No Aggravating Punishment on Defendants from appeals)是第二审程序的特殊原则。它是世界普遍采用的一种原则。我国刑事诉讼法也确立了这一原则,但是在理论上与实践中尚存缺陷,而这些缺陷易导致众多变相加刑的现象,使这一原则往往流于形式。主要表现在对其重要性认识不足,对其理论基础存在争议,对其适用范围更是尚未取得一致意见。本文认为上诉不加刑原则应当予以完善而不是废除,在司法实践中应当严格贯彻上诉不加刑原则,杜绝变相加刑。



【关键词】上诉、上诉不加刑、被告人、理论基础、适用范围



Abstract: The principle of “No Aggravating Punishment on Defendants from Appeals” is an important principle in our country’s criminal procedure law. And it is a common principle all over the world. In China, however, there are still lots of problems about this principle. It goes against the trial supervision procedure in judicial practice so that the defendants’ right to appeal is weakened and it comes be invain. Therefore, the principle of “No Aggravating Punishment on Defendants from Appeals” should be perfected. This paper tries to do the work and suggests that the principle of “No Aggravating Punishment on Defendants from Appeals” should be adopted in our judicial practice, and any aggravating punishment that against the law must be prohibited.



Key words: Appeal, No Aggravating Punishment on Defendants from Appeals, defendant, The base of Theory, The Range of Practice


前言
上诉不加刑(No Aggravating Punishment on Defendants from Appeals)是第二审程序的特殊原则,它是从“禁止不利变更原则”中引申出来的,该原则的本质和基本含义是,对于只有为被告人利益请示上诉的案件,第二审法院的判决不得将被告人置于更加不利的境地。它最早见于1908年法国《刑事诉讼法典》,是法国资产阶级革命的产物之一,也是资产阶级革命时期所宣扬的“民主”、“自由”、“人权”的一种体现。现在已发展成为世界各国刑事诉讼中普遍采用的一项重要原则。法国《刑事诉讼法典》第515条规定,“审理被告人或民事负责人的上诉时,法院不得使上诉人处于更加不利的地位。”德国《刑事诉讼法典》第358条规定,“仅由被告人,或者为他的利益由检察院或者他的法定代理人提出了上诉的时候,对于被声明不服的判决在法律对行为的处分种类、刑度方面不允许作不利于被告人的变更。”日本《刑事诉讼法典》第402条规定,“对被告人的上诉,禁止变更为不利,不得宣告重于原判决的处罚。”前苏联《刑事诉讼法典》第370条规定,“原判决如果是按照被判刑人的上诉理由而被撤消的,人民法院第二次所判处的刑罚不能重于第一次审判所选择刑罚。”迄今为止,世界上大多数国家都在其刑事诉讼法典中明文规定了或在司法实践中实际采用了上诉不加刑原则。在我国台湾地区,该原则也被称之为“禁止不利益变更原则”。
我国《刑事诉讼法》第190条规定,“第二审人民法院审判被告人或者他的法定代理人、辩护人、近亲属上诉的案件,不得加重被告人的刑罚。”“人民检察院提出抗诉或者自诉人提出上诉的,不受前款规定的限制。”这是上诉不加刑原则在我国法律上的体现。但是,由于第二审案件在案件类型、所判罪名、刑种等一系列问题上具有复杂性,加上刑事诉讼法对上诉不加刑这一原则规定得比较简单,所以无论在理论上还是在实践中,这一原则的理解和运用都存在较大的分歧[1]。因此,最高人民法院的司法解释对上诉不加刑的范围作了明确的规定。根据其规定,对上诉不加刑的要求学界已有详细论述,如“不加刑”的范围、“上诉”的含义、“不加刑”的效力范围等[2]。但是,从理论上看,目前我国立法和司法乃至理论上在上诉不加刑原则的一些方面尚存在缺陷,而这些缺陷易导致众多变相加刑的现象,使这一原则往往流于形式。本文首先通过对上诉不加刑原则的历史发展进行简要叙述,阐明上诉不加刑这一原则的重要性,其次从上诉不加刑原则的理论基础适用范围作些许探讨,并提出个人浅见。
1 历史发展
1.1 在外国的历史发展
上诉不加刑原则最早见于1908年法国《刑事诉讼法典》,是法国资产阶级革命的产物之一,也是资产阶级革命时期所宣扬的“民主”、“自由”、“人权”的一种体现。它的目的是使被告人能够毫无顾虑地行使上诉权,保证被告人的诉讼地位不会由于上诉而更加恶劣。这一原则同封建专制时期刑事诉讼中或者不许上诉,或者因上诉而招致更重的刑罚等公开专横的制度相比,无疑是一个历史进步。所以,当资产阶级革命获得胜利后,大陆法系的国家都先后在本国的刑事诉讼法典中采用了上诉不加刑的原则。但英美法系的国家采用这一原则较迟。在英国,直到1907年才通过了一个有关对刑事判决提起上诉的程序的法律,即《1907年刑事上诉法》。该法没有采纳上诉不加刑原则,而是规定:被告人对判决提出上诉时,上诉审法院根据自己对判刑人罪行的评断,不仅可以减轻、而且也可以加重原判决所判处的刑罚。但是,历史的进步趋势终究是不可抗拒的。英国《1966年刑事上诉法》和《1968年刑事上诉法》终于采用了上诉不加刑原则[3]。英国人自己写道:“在过去,刑事上诉法院如果认为被告人提出的上诉是无理取闹,则有权予以加刑;但现在法院已不再具有这种权利了,准一有效的威慑因素是,在驳回上诉时,有权命令在对上诉者提出的上诉作出裁定之前上诉者被羁押的时间(或者其中的部分时间)不计算在其刑期之内。”[4]
俄国十月革命之后、尤其是在第二次世界大战以后先后建立的各个社会主义国家,一般都在其刑事诉讼立法中采用了上诉不加刑原则。1922年《苏俄刑事诉讼法典》第370条便规定:“原判决如果是按照被判刑人的上诉理由而核准撤销的,人民法院第二次审判所判处的刑罚,不能重于第一次审判所选择的刑罚。”1958年的《苏联和备加盟共和国刑事诉讼纲要》第46条题为:“上诉审对判刑人不得加重刑罚或适用规定较重罪行的法律”,对上诉不加刑问题作了更为详细和严密的规定。到目前为止除了极少数国家外,世界各国都在其刑事诉讼法典申明文规定了或在司法实践中实际采用了上诉不加刑原则。
1.2 在我国的历史发展
在我国新民主主义革命时期根据地法制文献中,尚未发现关于上诉不加刑的内容。建国以后,上诉不加刑原则在我国刑事诉讼中的确立经历了一个漫长的过程。1956年10月《审判程序总结》中规定:“对于被告人或者他的监护人、辩护人、近亲属提起上诉的案件,如果认为原判处刑显然过轻,而确有加重刑罚必要的时侯,应当用裁定撤销原判,发回原审人民法院重审。”当时,最高人民法院马锡五副院长曾对此作了说明,他说:“在刑事案件审理程序初步总结这一部分内,还提到由被告人或者他的辩护人、近亲属提起上诉的案件,是否可以加重刑罚的问题。我们认为,在目前是可以加重刑罚。但在加刑的方式上,却以采取由上诉审人民法院撤销原判、发回原审人民法院重审的办法,比较妥当。因为由原审人民法院改判加刑,不但可以更好地考虑当地客观实际情况,而且可以保障被告人的上诉权利。同时,通过发回重审,还可以收到提高下级人民法院干部政策业务水平的效果。”[5] 1956年11月12日,最高人民法院在《关于由被告人或者他的监护人、辩护人、近亲属提起上诉的案件上级人民法院不直接加重刑罚问题的复函》中,并指出:“苏联方面的经验(指在上诉不加刑方面的经验。——笔者注),可以供作起草刑事诉讼法时的参考,目前还不宜机械搬用。”1957年,在起草《中华人民共和目刑事诉讼法草案(草稿)》时,有的同志提出应在刑事诉讼法中明文写上上诉不加刑原则。但由于当时的政治形势,赞同者不多,所以未能写上。随后,反右派斗争开始,政法战线受到猛烈冲击,上诉不加刑原则被作为“有利被告”的资产阶级右倾原则受到了批判。[6]在这种左的浪潮中,有的地方法院甚至感到发回原审改判加刑都有些“束手束脚”了,要求允许上诉审法院直接改判加刑。1957年12月26日,最高人民法院在《关于刑事审判程序上某些具体问题的临时变通意见》中答复说:“关于被告人或者他的监护人、辩护人、近亲属提起上诉的案件,上诉审人民法院可否直接改判加重刑罚的问题,如果原判处刑显然过轻,确有加重刑罚必要,而案件事实以及为虽则所需要斟酌的一切犯罪情节都完全清楚,证据明确,无须发回原审改判时,也可以不发回原审人民法院而由上诉审人人民法院自行改判。”1958年2月12日,最高人民法院又作了一个同样的批复。1963年起草《中华人民共和国刑事诉讼法草案(初稿)》时又有同志提出应采纳上诉不加刑原则,但由于当时“左”的空气相当浓厚,这一意见又被否决了。在“文化大革命”十年浩劫中,林彪、“四人帮”把我国的一切法律制度、包括很不健全的刑事诉讼制度都糟蹋殆尽,所谓“上诉不加刑”问题根本无从谈起。所以,从建国到1979年刑事诉讼法公布的三十年间,我国司法实践基本上没有采用上诉不加刑原则而是采取上诉可以加刑的做法。这在所有的社会主义国家中是独一无二的,在世界各国中也是少见的。
党的十一届三中全会极大地推动了我国的法制建设,中国开始走向改革开放,刑事诉讼法的制定重获契机。从1979年初开始,国家立法机关抓紧进行了刑法、刑事诉讼法等几个法律草案的修订工作。在讨论、修订刑事诉讼法草案的过程中,对被告人一方上诉的案件能否加刑的问题再次被提了出来。对这一原则有赞同也有不赞同的,但由于十一届三中全会解放了人们的思想,再加上“文化大革命”带来的惨痛教训,经过充分讨论,反复衡量比较,权衡利弊得失,“上诉不加刑”得到了绝大多数人的支持。刑事诉讼法终于在第137条明确规定:“第二审人民法院审判被告人或者他的法定代理人、辩护人、近亲属上诉的案件,不得加重被告人的刑罚。”这样,上诉不加刑原则终于在我国得以确立,这实在是来之不易的。
上诉不加刑原则在我国得以确立以后,由于改革开放以来随着我国社会主义市场经济的建立和社会主义民主和法制建设的不断发展,上诉不加刑原则在司法实践中也是历尽“艰辛”。1996年,我国刑事诉讼法进行了修正,新修正的刑事诉讼法仍然肯定了这一原则,在新修改的刑事诉讼法第190条第1款重新肯定了原刑事诉讼法第137条的规定。只是在第190条第2款对上诉不加刑原则进行了限制,规定:“人民检察院提出抗诉或者自诉人提出上诉的,不受前款规定的限制。”为了更好的适用上诉不加刑原则,最高人民法院在关于执行《中华人民共和国刑事诉讼法》若干问题的解释第257条中对上诉不加刑的适用范围作了限制,但仍存在不少缺陷(容后文述)。
1.3 上诉不加刑原则的意义
上诉不加刑原则与保障上诉权原则、全面审查原则和实事求是、有错必纠原则一样,是我国刑事诉讼第二审必须遵守的原则之一。建国以来刑事诉讼的经验教训表明,这一原则具有重要意义。没有这一原则,我国刑事诉讼中以事实为根据、以法律为准绳的原则,被告人有权获得辩护原则,保障诉讼参与人依法享有的诉讼权利的原则以及第二审的其他三项原则,必然耍受到损害。从历史角度看,鉴于“文化革命”期间林彪、江育反革命集团任意践踏社会主义民主和法制,严重侵犯被告人的诉讼权利,以致造成大量冤假错案的情况,刑事诉讼法确立这项原则,更有其重大意义。具体地讲:
首先,上诉不加刑原则有利于保障被告人的上诉权,保证上诉制度和两审终审制度的贯彻执行,司法实践表明:第二审案件除少数由检察院提起抗诉和自诉人上诉外,绝大多数是由被告人一方的上诉引起的,因此上诉制度和两审终审制度能否真正发挥作用,在很大程度上取决于被告一方的上诉权能否充分顺利地行使。如果没有上诉不加刑原则,被告人一方提出上诉后,二审法院不仅没有减轻或免除刑罚,反而加重了刑罚,就必然会增加被告一方对上诉人思想顾虑,甚至在一审判决不正确的情况下也不敢上诉,这在客观上会限制被告人行使上诉权,同时也使得一审的错误,因为没有上诉而得不到及时的发现和纠正,两审终审制就会流于形式。
其次,有利于促使法院加强责任心,提高办案质量,从而杜绝错案的发生。第一审法院如果对被告人量刑过轻,第二审法院受上诉不加刑的限制,不能改判加重刑罚,就有可能产生轻纵罪犯的结果,为避免这种结果出现,就必须提高一审办案质量。
第三,上诉不加刑原则的存在有利于促进检察机关履行法律监督职责。由于上诉不加刑还包含着检察机关同时提出了抗诉的案件不受上诉不加刑限制的内容,二审法院审理抗诉的案件如果原判量刑确属过轻,可以改判加重被告人的刑罚。如果检察机关对原判确有错误,量刑过轻的案件没有抗诉,二审法院就不能改判加重被告人的刑罚。可见,上诉不加刑原则可以加强检察机关的责任感,促使其发挥监督作用,及时做好对量刑过轻案件抗诉工作。
2 上诉不加刑的尴尬与存废之争
2.1 上诉不加刑原则在理论上的尴尬
首先,上诉不加刑与我国刑法的基本原则相违背。根据上诉不加刑原则,第二审人民法院审判被告人或者他的法定代理人、辩护人、近亲属上诉的案件,不得加重被告人的刑罚。同时,如果是检察机关抗诉的共同犯罪案件,对检察机关没有提出抗诉的被告人,也不得加重刑罚。也就是说,在有些案件当中,被告人上诉了,就有可能逃避更重的刑罚,没有上诉的被告人就无法享受这样的“优待”。另外,若检察机关只对共同犯罪案件中的部分被告人提出抗诉的,没有被抗诉的被告人也有可能享受逃避更重刑罚的“优待”。就这与我国刑法的基本原则相违背。因为我国刑法第四条规定:“对任何人犯罪,在适用法律上一律平等地。不允许任何人有超越法律的特权。”同时第五条又规定:“刑罚的轻重,应当与犯罪分子所犯罪行和承担的刑事责任相适应。”这两条及我国刑法的法律面前人人原则和罪行相适应原则。由前面的举例却可以看出,由于上诉不加刑制度的存在,使得一审量刑太轻亦无法纠正,也就是违反了罪刑相适应原则,这将导致重罪轻判、轻纵犯罪,既不利于刑事诉讼法惩罚犯罪目的的实现,也不利于罪犯的教育和改造。
其次,它与刑事诉讼法的有错必纠原则相矛盾。刑事诉讼法的所有程序制度都服务于有错必纠原则,而上诉不加刑原则使有错必纠原则在二审当中得不到体现。
再次,上诉不加刑在司法实务中的运用也往往会限入尴尬境地。从我国刑事诉讼法第190条的规定来看,在我国上诉不加刑原则只适用于只有被告人或者他的法定代理人、辩护人、近亲属提出上诉的案件;如果是人民检察院提出抗诉、自诉人提出上诉的案件,或者在被告人一方提出上诉的同时人民检察院也提出抗诉、或者自诉人也提出上诉的,则不受上诉不加刑原则的限制。同时,根据我国《刑事诉讼法》第189条和第191条规定,下列案件可发回重审:一是原判决事实不清或证据不足的,可撤消原判,发回重审;二是一审法院的审理违反诉讼程序的,应当撤销原判,发回重审。最高院的《解释》第257条规定,对于事实清楚、证据充分,但判处的刑罚畸轻,或者应当适用附加刑而没有适用的案件,不得撤销第一审判决,直接加重被告人的刑罚或适用附加刑,也不得以事实不清或者证据不足发回第一审人民法院重新审理。必须依法改判的,应当在第二审判决、裁定生效后,按照审判监督程序重新审判。由以上规定可以看出,被告人的上诉不加刑的权利受到几个方面的威胁:一、检察院的抗诉或自诉人的上诉;二、发回重审后加刑;三、通过审判监督程序重新审判后加刑。这样一来,尽管刑事诉讼已经规定了上诉不加刑原则,通过各种途径仍然可加对被告人予以加刑,即“曲线加刑”,使得上诉不加刑原则流于形式,名存实亡,形成一种尴尬局面。
2.2 上诉不加刑原则能否废除
鉴于上述问题,关于上诉不加刑的存废问题,理论上也是争论不休。有人提出废除,理由就是上诉不加刑在我国实施将造成尴尬局面;有人提出保留,并建议为了贯彻实事求是原则和有错必纠原则可以对上诉不加刑采取一些变通做法,达到实体真实的目的;还有人提出在完善的基础上保留这一原则。笔者赞成最后一种意见。因为上诉不加刑在我国的确立,如前文所述,本身经历了曲折的一个历史过程,如果简单以目前司法实务中的一些不尽如人意的地方作为理由而主张废除,就显得非常轻率,将是逆流行径,不利于对被告人的权利的保护,也不利于我国刑事诉讼制度的完善与发展。我国宪法已经明确规定:“国家尊重和保障人权。”上诉不加刑原则可以保障被告人充分行使上诉的权利,从而有利于被告人权利得到更好的保护。我们不能因为通向正义的道路充满荆棘而放弃对正义的追求,我们同样不能仅因为上诉不加刑原则不完善而废之。相反,我们要努力完善之,下文将会述及这一问题。
3 上诉不加刑的理论依据及其评价
3.1 上诉不加刑的理论依据
关于上诉不加刑原则的根据,目前理论界主要的新观点有“控审分离说”、“控辩平衡说” 和“利益权衡说”。
“控审分离说”(又称“不告不理说”)认为“上诉不加刑”是有控审分离这项表示刑事诉讼民主、科学、文明的原则所要求的,即使法律未明文规定,二审法院也应当遵守。其核心含义是,对于未经起诉的案件,法院不能受理和审判,控审必须分离,其次是法院审判必须受诉讼主张的限制,在只有被告人一方提起上诉的情况下,法院是依据要求减轻刑罚之诉进行第二审程序,理所当然不能加重对被告人的处罚。如果二审判决加重了对被告人的处罚,就明显超越了诉讼主张的限制,违背了不告不理和控审分离的原则[7]。
“控辩平衡”说认为由于控辩双方实质上的不平等,所以应加强对被告人的特殊保护,使其拥有一些特权以换取实质上的平衡。这是数千年来人们对公平、正义思考的理论结晶[8]。
“利益权衡说”认为,在刑事诉讼程序中存在许多利益冲突,如实体正义与程序正义,打击犯罪与保障人权,公正与效率等。当这些冲突发生且利益难以兼得时,就应该采取“利益权衡”原则,“两利相权取其大,两害相权选其轻”。上诉不加刑原则正是这种“利益权衡原则”在立法上运用的产物,其坚持了程序上的人权保障而放弃了个案刑罚权的行使,是以牺牲个别真实为代价而谋求普遍的真实,是对实体与程序、惩罚与保障等冲突利益权衡的结果[9]。
3.2 理论评价