論被追訴人辯解
發(fā)布時間：2018-08-06 21:34
【摘要】：隨著司法改革的不斷深入和司法工作的透明化,公眾對司法工作的了解也越來越深。但同時司法工作的一些不足也逐漸顯露出來,層出不窮的冤假錯案觸痛著民眾的神經(jīng),也引起了國家領(lǐng)導(dǎo)人的高度重視。習(xí)近平總書記多次在講話中強調(diào)決不允許濫用權(quán)力侵犯群眾合法權(quán)益,決不允許執(zhí)法犯法造成冤假錯案。要防范冤假錯案,最根本還是要保證被追訴人的各項權(quán)利能得到有效保障和行使,刑事訴訟嚴格按照法定程序進行。而被追訴人辯解作為被追訴人及其重要的一項權(quán)利,在實踐中也最容易受到忽視和侵犯。 被追訴人辯解是我國理論界鮮有涉及的問題,此前曾有學(xué)者對被追訴人供述和辯解的概念加以界定,對口供的使用規(guī)則加以研究,但卻少有人對被追訴人辯解進行系統(tǒng)的理論研究。本文將結(jié)合當前防范冤假錯案的背景,對涉及被追訴人辯解的相關(guān)理論和實務(wù)工作進行闡釋和介紹,希望能為完善對被追訴人的權(quán)利保障,防范冤假錯案的發(fā)生作出一點貢獻。 本文除引言、結(jié)論外,共分為六個部分： 第一部分,被追訴人辯解的理論界定。通過對被追訴人辯解的作出主體、主要內(nèi)容、作出形式等多個方面闡釋被追訴人辯解的內(nèi)涵,并通過比較與供述、口供、攀供、自白等概念加以區(qū)分。 第二部分,被追訴人辯解訴訟功用分析。被追訴人辯解作為一種法定的證據(jù)形式存在,在訴訟過程中發(fā)揮著獨特的功用,本部分從有效辯護、程序正義、控辯平衡、無罪推定、防范冤假錯案、全面和準確作出司法判斷、裁判說理等幾個角度入手,深入分析被追訴人辯解在刑事訴訟過程中所展現(xiàn)的程序和實體兩方面的功用,以著力表現(xiàn)保障被追訴人辯解的重要理論和現(xiàn)實意義。 第三部分,被追訴人辯解與證明責(zé)任。被追訴人在刑事訴訟過程中可以提出自己的辯解意見。被追訴人要不要對自己的辯解意見承擔(dān)證明責(zé)任,決定了被追訴人要不要承擔(dān)舉證不能而帶來的不利后果。本部分通過對無罪推定原則的解讀得出結(jié)論,即辯解是被追訴人的一項權(quán)利,其辯解的真?zhèn)雾氂蓚刹闄C關(guān)、檢察機關(guān)予以調(diào)查,進而在庭審階段由控方對被告人有罪承擔(dān)證明責(zé)任,原則上被告人不承擔(dān)證明自己無罪的責(zé)任。 第四部分,被追訴人辯解立法規(guī)定和司法適用的域外考察。本部分將從國際視角考察英美法系國家和大陸法系國家對被追訴人辯解相關(guān)問題的規(guī)定和做法,以期通過汲取其他國家的先進經(jīng)驗來完善我國的司法制度。 第五部分,被追訴人辯解適用的法律現(xiàn)狀。目前我國在法律層面對保障被追訴人辯解作了比較詳細的規(guī)定,但在實踐運行中卻實現(xiàn)了一些偏差。本部分通過闡釋我國被追訴人辯解的理論依據(jù)和運行現(xiàn)狀,指出在實務(wù)中被追訴人辯解還尚未得到有效保障,被追訴人的辯護權(quán)遭受侵犯的現(xiàn)象還時有發(fā)生,并且對被追訴人辯解的侵犯極易造成冤假錯案的發(fā)生。 第六部分,被追訴人辯解理性適用的訴訟對策。本部分將通過對前述問題的分析,結(jié)合當前實務(wù)中存在的問題,借鑒國外在保障被追訴人權(quán)利方面的先進成果,提出自己對完善被追訴人辯解的構(gòu)想和對策。
[Abstract]:With the deepening of judicial reform and the transparency of judicial work, the public's understanding of the judicial work is becoming more and more deep. At the same time, some of the shortcomings of the judicial work have been gradually revealed. The unjust and false cases that emerge in an endless stream have touched the people's nerves and have aroused the high attention of the leaders of the state. General Secretary Xi Jinping has been strong in his speech many times. It is not allowed to abuse power to infringe the legitimate rights and interests of the masses, and never allow law enforcement offense to cause wrongful and false cases. To prevent wrongful and false cases, the most fundamental is to ensure that the rights of the accused can be effectively guaranteed and exercised, and the criminal proceedings are carried out in strict accordance with the legal procedure. The accused is accused of being the accused and an important one. The right of item is also easily ignored and violated in practice.
The plead of the accused is a problem rarely involved in the theoretical circle of our country. Before, some scholars have defined the concept of confession and justification of the accused and studied the rules of the use of the confession, but few have made systematic theoretical research on the pleas of the accused. The interpretation and introduction of the relevant theories and practical work of the justification hope to make a contribution to the improvement of the rights protection of the accused and the prevention of the wrongful and false cases.
In addition to the introduction and conclusion, this paper is divided into six parts:
The first part is the theoretical definition of the defendant's argument. Through the subject, the main content and the form of the defendant, it explains the connotation of the defendant's argument, and makes a distinction between the confession, the confession, the confession, the confession and the confession.
In the second part, the prosecutor defends the analysis of litigation function. The defendant pleads as a statutory form of evidence and plays a unique function in the process of litigation. This part of this part is from effective defense, procedural justice, balance of prosecution and defense, presumption of innocence, prevention of wrongful and false cases, judicial judgment, judicial judgment and other angles. Hand, in depth analysis of the two aspects of the procedure and entity demonstrated by the accused in the process of criminal proceedings, in order to demonstrate the important theory and practical significance of ensuring the defendant's defense.
The third part is the defendant's justification and the burden of proof. The accused may put forward his own argument in the process of criminal proceedings. The accused shall bear the burden of proof of his own argument, and decide whether the defendant should bear the negative consequences of the proof. The conclusion is that the justification is a right of the accused. The true or false of the defense must be investigated by the investigative organ and the procuratorial organ, and then the prosecution is responsible for the defendant to prove guilty at the stage of trial. In principle, the defendant does not bear the responsibility of proving his innocence.
In the fourth part, the prosecutor defends the legislative provisions and the extraterritorial investigation of the judicial application. This part will examine the provisions and practices of the Anglo American law and civil law countries to justify the related issues from the Anglo American legal system and the civil law countries from the international perspective, with a view to completing the judicial system of our country through the advanced experience of other countries.
The fifth part, the prosecuted person defends the applicable legal status. At present, China has made a more detailed provision in the legal level to defend the accused who has been prosecuted, but it has realized some deviations in the practice. This part explains the theoretical basis and operation status of the defendant in our country, and points out that the defendant is still a defendant in practice. The infringement of the defendant's right to defense has not been effectively guaranteed, and the infringement of the accused is very easy to cause the occurrence of the wrongful and false cases.
In the sixth part, the prosecuted person defends the rational application of the litigation countermeasures. Through the analysis of the previous problems and the existing problems in the current practice, this part will draw on the advanced achievements of foreign countries in guaranteeing the rights of the accused to be prosecuted and put forward their own ideas and Countermeasures for the improvement of the defendant's defense.
【學(xué)位授予單位】：山東大學(xué)
【學(xué)位級別】：碩士
【學(xué)位授予年份】：2014
【分類號】：D925.2
本文編號：2169054
[Abstract]:With the deepening of judicial reform and the transparency of judicial work, the public's understanding of the judicial work is becoming more and more deep. At the same time, some of the shortcomings of the judicial work have been gradually revealed. The unjust and false cases that emerge in an endless stream have touched the people's nerves and have aroused the high attention of the leaders of the state. General Secretary Xi Jinping has been strong in his speech many times. It is not allowed to abuse power to infringe the legitimate rights and interests of the masses, and never allow law enforcement offense to cause wrongful and false cases. To prevent wrongful and false cases, the most fundamental is to ensure that the rights of the accused can be effectively guaranteed and exercised, and the criminal proceedings are carried out in strict accordance with the legal procedure. The accused is accused of being the accused and an important one. The right of item is also easily ignored and violated in practice.
The plead of the accused is a problem rarely involved in the theoretical circle of our country. Before, some scholars have defined the concept of confession and justification of the accused and studied the rules of the use of the confession, but few have made systematic theoretical research on the pleas of the accused. The interpretation and introduction of the relevant theories and practical work of the justification hope to make a contribution to the improvement of the rights protection of the accused and the prevention of the wrongful and false cases.
In addition to the introduction and conclusion, this paper is divided into six parts:
The first part is the theoretical definition of the defendant's argument. Through the subject, the main content and the form of the defendant, it explains the connotation of the defendant's argument, and makes a distinction between the confession, the confession, the confession, the confession and the confession.
In the second part, the prosecutor defends the analysis of litigation function. The defendant pleads as a statutory form of evidence and plays a unique function in the process of litigation. This part of this part is from effective defense, procedural justice, balance of prosecution and defense, presumption of innocence, prevention of wrongful and false cases, judicial judgment, judicial judgment and other angles. Hand, in depth analysis of the two aspects of the procedure and entity demonstrated by the accused in the process of criminal proceedings, in order to demonstrate the important theory and practical significance of ensuring the defendant's defense.
The third part is the defendant's justification and the burden of proof. The accused may put forward his own argument in the process of criminal proceedings. The accused shall bear the burden of proof of his own argument, and decide whether the defendant should bear the negative consequences of the proof. The conclusion is that the justification is a right of the accused. The true or false of the defense must be investigated by the investigative organ and the procuratorial organ, and then the prosecution is responsible for the defendant to prove guilty at the stage of trial. In principle, the defendant does not bear the responsibility of proving his innocence.
In the fourth part, the prosecutor defends the legislative provisions and the extraterritorial investigation of the judicial application. This part will examine the provisions and practices of the Anglo American law and civil law countries to justify the related issues from the Anglo American legal system and the civil law countries from the international perspective, with a view to completing the judicial system of our country through the advanced experience of other countries.
The fifth part, the prosecuted person defends the applicable legal status. At present, China has made a more detailed provision in the legal level to defend the accused who has been prosecuted, but it has realized some deviations in the practice. This part explains the theoretical basis and operation status of the defendant in our country, and points out that the defendant is still a defendant in practice. The infringement of the defendant's right to defense has not been effectively guaranteed, and the infringement of the accused is very easy to cause the occurrence of the wrongful and false cases.
In the sixth part, the prosecuted person defends the rational application of the litigation countermeasures. Through the analysis of the previous problems and the existing problems in the current practice, this part will draw on the advanced achievements of foreign countries in guaranteeing the rights of the accused to be prosecuted and put forward their own ideas and Countermeasures for the improvement of the defendant's defense.
【學(xué)位授予單位】：山東大學(xué)
【學(xué)位級別】：碩士
【學(xué)位授予年份】：2014
【分類號】：D925.2
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，本文編號：2169054
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