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减刑是对原裁判内容的更改,应归属审判权范围,其在性质上应定位为司法行为。而我国减刑程序以行政化方式运作,其表现及弊端包括无控诉审判,违背控审分离原则;采用书面审查方式,影响案件结果的公正性;服刑人和被害人没有参与机会,损害其正当权利;人民检察院监督滞后、软弱,影响监督效果;审结期限规定不完整,损害法律权威等。应当对我国减刑程序进行诉讼化设计,克服这些问题,还原减刑制度之制度精髓。
Commutation is a change to the original sentence and should be attributed to the scope of jurisdiction. It should be positioned as a judicial act in nature. However, the procedure and procedure of the commutation procedure in our country are operated in an administrative way. The performance and malpractices include no trial of complaint and violation of the principle of separation of prosecution and trial. The paper review method affects the fairness of the result of the case. The prisoner and the victim have no opportunity to participate in and undermine their legitimate rights. People’s Procuratorate supervision lags behind, weakness, the effect of supervision; conclusion of the deadline is not complete, damage to legal authority. The procedure of commutation of sentence in our country should be designed through litigation so as to overcome these problems and restore the essence of the system of commutation.