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就刑事调解制度的现实基础而言,既有现行刑事司法模式所带来的困惑,也有刑事政策变革之要求;既有域外的刑事司法改革经验,也有各刑事诉讼主体的利益诉求。治理、善治理论、社会资本理论、传统“无讼”文化、被害人学说等为刑事调解制度提供了理论依据。刑事调解制度作为一种新兴的刑事司法模式还存在诸多问题,主要表现在其主要解决被害方民事赔偿问题而缺失社会关系的修复;对刑事法原则带来了一定的冲击,容易造成不平等和歧视待遇;会带来在预防犯罪的同时降低了刑罚威慑力、促使犯罪的形成的双重社会效果等方面,必须对其进行理性思考。
As far as the practical basis of the criminal mediation system is concerned, there are not only the confusion brought about by the current criminal justice model but also the requirements for the criminal policy reform. There are not only the experience of criminal justice reform but also the interest demands of the various criminal litigants. The theory of governance, good governance, social capital, tradition, “no lawsuit” and victim theory provide the theoretical basis for the criminal mediation system. Criminal reconciliation system as a new model of criminal justice still has many problems, mainly manifested in its main solution to the problem of civil compensation for victims and the lack of social relations; the impact on the principles of criminal law has a certain impact, easily lead to inequality and Discrimination treatment will bring about the prevention of criminal penalties at the same time reducing the deterrent to promote the formation of a double social effects of crime must be rational thinking.