王海军

【摘 要】 传统上将当事人主义刑事证明模式理解为对抗式，事实上，证明过程中控辩审三方的关系既有对抗，又有合作。合作既体现在实质上的合作需求，又体现在形式上的程序设计。合作机制与对抗机制共同 构成当事人主义刑事证明模式。刑事证明的合作模式体现了正义与效率的价值，可以促进正义有效地实现。 同时，对抗与合作又是对立统一的关系，对抗机制是主导，合作机制是补充。

【关键词】 当事人主义；刑事证明模式；对抗；合作

【中图分类号】 D918.9

【文献标识码】 A

【文章编号】 1674-1226（2012）06-0674-09

Cooperation from Confrontation: Rethink the Criminal Proof Mode of Adversary System. Wang Haijun.china university of politicat science and law, 100088.

【Abstract】 In tradition, the criminal proof mode was regarded as the confrontation, the confrontation between the accused and the defendant and followed by the decision from the judge. In fact, there is also cooperation in a proof procedure besides confrontation. In a normative sense, the adversary is a prerequisite for coopera tion. And, in some extents, the common purpose shared by the three parties is motivation of cooperation, and the residual distribution is condition of cooperation. According to different standards, cooperation can be divided into different forms, such as the complementary and the competitive, the convictive and the sentencing, the antagonistic and the nonantagonistic. In a criminal proof procedure, cooperation mechanism is mainly embodied as restorative justice program, discovery procedure, plea bargaining process, criminal reconciliation procedure, program selection and sentencing procedures. As for value, cooperation pattern reflects justice and efficiency, which can efficiently realize justice. As for relationship, confrontation and cooperation are not independent or opposite, but mixed together. The confrontation is dominant but there is also cooperation from confrontation.

【Key words】 Adversary system, Criminal proof mode, Confrontation, Cooperation