羈押審查模式的比較研究
發(fā)布時間：2018-09-18 14:57
【摘要】：在刑事訴訟偵查程序中,剝奪或限制犯罪嫌疑人的人身自由是對其基本人權(quán)最為嚴厲的干預(yù)措施之一。如何使羈押性強制措施作為一種“必要的惡”在打擊犯罪與保障人權(quán)之間求得平衡,世界各國甚至國際人權(quán)法都進行嚴格的規(guī)定和限制。而在這諸多措施中,羈押審查程序居于核心地位：一方面,控訴方要想羈押犯罪嫌疑人,就必須經(jīng)由羈押審查程序方可實現(xiàn),即無羈押審查程序則無羈押；另一方面,犯罪嫌疑人也可經(jīng)羈押審查程序獲得程序保障和程序效力,即有羈押則必經(jīng)羈押審查程序。從國內(nèi)研究情況來看,學界要求完善我國羈押審查程序的呼聲很高漲,已有的研究成果大多是從刑事強制措施入手,對羈押進行研究,羈押審查往往只作為其中一部分內(nèi)容,羈押審查模式尚未進行專門系統(tǒng)的研究。此外,我國羈押司法實踐中違法羈押、濫用羈押等問題突出,雖然2012年新近通過的中國刑事訴訟法對羈押進行了一定的修改完善,但還是沒有觸及到羈押制度的一些根本性缺陷。因此,繼續(xù)深化研究羈押審查,不僅具有重要的理論和現(xiàn)實意義,也對我國刑事訴訟與國際接軌、以更自信的姿態(tài)走向世界具有重要的政治意義。根據(jù)羈押與羈押審查的先后順序、羈押審查的構(gòu)造性特征和羈押審查的審查方式等根本性不同,可以將羈押審查分為事前審批模式和事后審查模式。事前審批模式以中國為代表,采用行政性的審查批捕程序,通過一系列行政性的審批手段決定,犯罪嫌疑人、被告人等待羈押審查的時問相對較長,也缺乏充分的程序保障,羈押審查的裁判者也不是法官而是檢察官。事后審查模式以域外主要國家和國際公約為代表,采用司法性的審查程序,被追訴者一經(jīng)逮捕,便會在很短的時間內(nèi)被提交給中立的司法官員進行羈押審查。考察事后審查模式下的各主要代表國家,歸納發(fā)現(xiàn)域外的羈押審查幾乎普遍遵循兩個原則：迅速審查原則和司法裁判原則。通過比較研究發(fā)現(xiàn),在審查時間上,事后審查模式下多采取1-2天的很短時限,個別先進國家甚至細化到若干小時；而事前審批模式下犯罪嫌疑人等待批捕的時間較長,與事后審查模式存在很大差距。在審查主體上,事后審查模式采用法官審查,保障了程序公正；而事前審批模式采用檢察官批準的方式,“派員介入偵查、參與案件討論”導(dǎo)致了中立性的喪失,“建議逮捕”違背了不告不理之司法原理,“審查偵查活動合法性”沖淡了羈押審查的主題,“自偵案件”存在構(gòu)造性盲區(qū)。在審查方式上,事后審查模式一般采用對席式進行,保障了案件真實之發(fā)現(xiàn)和當事人的程序權(quán)利；而事前審批模式采用書面審理和輔助以“訊問”方式,由偵查人員訊問導(dǎo)致了“批準的人不檢查,檢查的人不中立,檢查人是申請人”的矛盾,訊問內(nèi)容也多是實體性的而非羈押審查所需的程序性訊問,并且訊問也不是強制性的。在逮捕與羈押的關(guān)系上,事后審查模式多采用逮捕與羈押相分離的做法,有利于對羈押進行單獨審查；而事前審批模式下逮捕與羈押合二為一,逮捕當然的等同羈押,導(dǎo)致羈押審查程序的冗雜。在程序的屬性上,事后審查模式采用司法性的程序,當事人享有充分而有效的救濟權(quán)利；而事前審批模式采用行政審批,當事人沒有有效的救濟。在審查的效果上,事后審查模式相較事前審批模式更有效果。由此比較可發(fā)現(xiàn),事后審查模式比事前審批模式更為科學,事前審批模式存在眾多缺陷。究其深層原因,在于事前審批模式的訴訟模式采用犯罪控制模式,而事后審查模式的訴訟模式采用正當程序模式；在訴訟構(gòu)造上,事前審批模式采用“流水作業(yè)式”,缺乏對審前偵查程序的司法審查,訴訟構(gòu)造一方的當事人也多為追訴客體,缺乏有效的訴訟對抗和救濟；在基本原則上,事前審批模式還沒有對羈押審查程序進行專門而有效的規(guī)定。因此,對我國事前審批模式進行完善,實行逮捕與羈押相分離的做法,重新整合現(xiàn)行的強制措施,按照迅速審查和司法裁判的要求,在整體上構(gòu)建后置式的羈押審查程序。
[Abstract]:In the criminal procedure, depriving or restricting the personal freedom of criminal suspects is one of the most severe interventions to their basic human rights. How to make detention coercive measures as a "necessary evil" to strike a balance between combating crime and protecting human rights, all countries in the world and even international human rights law have strict provisions. Among these measures, the detention review procedure occupies the core position: on the one hand, if the prosecution wants to detain the criminal suspect, it must be realized through the detention review procedure, that is, no detention review procedure; on the other hand, the criminal suspect can obtain procedural guarantee and procedural effect through the detention review procedure, that is, the detention review procedure. From the domestic research situation, there is a high demand for perfecting the detention review procedure in our country. Most of the existing research results are based on criminal compulsory measures to study detention. The detention review is often only a part of it, and the detention review mode has not yet been carried out in a special system. In addition, problems such as illegal detention and abuse of detention are prominent in China's judicial practice of detention. Although China's Criminal Procedure Law recently passed in 2012 has made some modifications and improvements to detention, it has not touched on some fundamental defects of the detention system. Therefore, it is not only important to continue to deepen the study of detention review. On the basis of the order of detention and detention review, the structural characteristics of detention review and the mode of detention review are fundamentally different, and detention review can be divided into pre-trial Approval Mode and post-trial. The mode of pre-trial and approval, represented by China, adopts the administrative procedure of examination and arrest, and decides through a series of administrative means of examination and approval. The suspects and defendants have a relatively long time to wait for custody review, and lack sufficient procedural protection. The referee of custody review is not a judge but a prosecutor. Represented by the main foreign countries and international conventions, the prosecuted will be submitted to a neutral judicial officer for custody review in a very short time after arrest by judicial review procedure. Through the comparative study, it is found that in the examination time, the ex post examination mode usually takes a very short time of 1-2 days, and some advanced countries even refine to several hours; while in the pre-examination and approval mode, the suspects wait for a long time for arrest, which is quite different from the ex post examination mode. As for the subject of investigation, the mode of ex post facto examination adopts the judge's examination, which guarantees the procedural justice; while the mode of ex ante examination and approval adopts the way approved by the prosecutor, "sending officers to participate in investigation and case discussion" leads to the loss of neutrality, "suggesting arrest" violates the judicial principle of ignoring the accusation, and "examining the legality of investigation activities" dilutes the detention. There is a structural blind spot in the subject of detention review. In the way of examination, the mode of post-mortem review is usually carried out by the way of opposite seats, which guarantees the true discovery of the case and the procedural rights of the parties concerned. In the mode of pre-mortem examination and approval, the mode of written trial and auxiliary interrogation are adopted, and the investigators interrogate the approved persons. Without inspection, the inspector is not neutral, the inspector is the applicant. "The content of interrogation is more substantive than the procedural interrogation required by custody review, and interrogation is not mandatory. In the relationship between arrest and custody, the mode of post-mortem review mostly adopts the separation of arrest and custody, which is conducive to the detention alone. In terms of the nature of the procedure, the ex post review mode adopts judicial procedure, and the parties enjoy full and effective relief rights; while the ex ante examination and approval mode adopts administrative examination and approval, and the parties are not effective. In terms of the effect of the review, the mode of ex post examination is more effective than the mode of ex ante examination and approval. From this comparison, we can find that the mode of ex post examination is more scientific than the mode of ex ante examination and approval, and there are many defects in the mode of ex ante examination and approval. In the litigation structure, the pre-trial approval mode adopts the "flowing mode", lacks the judicial review of the pre-trial investigation procedure, and the litigants on one side of the litigation structure are mostly the object of prosecution, lacking effective litigation confrontation and relief; in the basic principle, the pre-trial approval mode has not yet taken custody. Therefore, we should perfect the pattern of pre-trial and approval, separate arrest from detention, re-integrate the existing compulsory measures, and construct the post-trial procedure of detention as a whole in accordance with the requirements of prompt review and judicial adjudication.
【學位授予單位】：南京大學
【學位級別】：碩士
【學位授予年份】：2014
【分類號】：D925.2
本文編號：2248275
[Abstract]:In the criminal procedure, depriving or restricting the personal freedom of criminal suspects is one of the most severe interventions to their basic human rights. How to make detention coercive measures as a "necessary evil" to strike a balance between combating crime and protecting human rights, all countries in the world and even international human rights law have strict provisions. Among these measures, the detention review procedure occupies the core position: on the one hand, if the prosecution wants to detain the criminal suspect, it must be realized through the detention review procedure, that is, no detention review procedure; on the other hand, the criminal suspect can obtain procedural guarantee and procedural effect through the detention review procedure, that is, the detention review procedure. From the domestic research situation, there is a high demand for perfecting the detention review procedure in our country. Most of the existing research results are based on criminal compulsory measures to study detention. The detention review is often only a part of it, and the detention review mode has not yet been carried out in a special system. In addition, problems such as illegal detention and abuse of detention are prominent in China's judicial practice of detention. Although China's Criminal Procedure Law recently passed in 2012 has made some modifications and improvements to detention, it has not touched on some fundamental defects of the detention system. Therefore, it is not only important to continue to deepen the study of detention review. On the basis of the order of detention and detention review, the structural characteristics of detention review and the mode of detention review are fundamentally different, and detention review can be divided into pre-trial Approval Mode and post-trial. The mode of pre-trial and approval, represented by China, adopts the administrative procedure of examination and arrest, and decides through a series of administrative means of examination and approval. The suspects and defendants have a relatively long time to wait for custody review, and lack sufficient procedural protection. The referee of custody review is not a judge but a prosecutor. Represented by the main foreign countries and international conventions, the prosecuted will be submitted to a neutral judicial officer for custody review in a very short time after arrest by judicial review procedure. Through the comparative study, it is found that in the examination time, the ex post examination mode usually takes a very short time of 1-2 days, and some advanced countries even refine to several hours; while in the pre-examination and approval mode, the suspects wait for a long time for arrest, which is quite different from the ex post examination mode. As for the subject of investigation, the mode of ex post facto examination adopts the judge's examination, which guarantees the procedural justice; while the mode of ex ante examination and approval adopts the way approved by the prosecutor, "sending officers to participate in investigation and case discussion" leads to the loss of neutrality, "suggesting arrest" violates the judicial principle of ignoring the accusation, and "examining the legality of investigation activities" dilutes the detention. There is a structural blind spot in the subject of detention review. In the way of examination, the mode of post-mortem review is usually carried out by the way of opposite seats, which guarantees the true discovery of the case and the procedural rights of the parties concerned. In the mode of pre-mortem examination and approval, the mode of written trial and auxiliary interrogation are adopted, and the investigators interrogate the approved persons. Without inspection, the inspector is not neutral, the inspector is the applicant. "The content of interrogation is more substantive than the procedural interrogation required by custody review, and interrogation is not mandatory. In the relationship between arrest and custody, the mode of post-mortem review mostly adopts the separation of arrest and custody, which is conducive to the detention alone. In terms of the nature of the procedure, the ex post review mode adopts judicial procedure, and the parties enjoy full and effective relief rights; while the ex ante examination and approval mode adopts administrative examination and approval, and the parties are not effective. In terms of the effect of the review, the mode of ex post examination is more effective than the mode of ex ante examination and approval. From this comparison, we can find that the mode of ex post examination is more scientific than the mode of ex ante examination and approval, and there are many defects in the mode of ex ante examination and approval. In the litigation structure, the pre-trial approval mode adopts the "flowing mode", lacks the judicial review of the pre-trial investigation procedure, and the litigants on one side of the litigation structure are mostly the object of prosecution, lacking effective litigation confrontation and relief; in the basic principle, the pre-trial approval mode has not yet taken custody. Therefore, we should perfect the pattern of pre-trial and approval, separate arrest from detention, re-integrate the existing compulsory measures, and construct the post-trial procedure of detention as a whole in accordance with the requirements of prompt review and judicial adjudication.
【學位授予單位】：南京大學
【學位級別】：碩士
【學位授予年份】：2014
【分類號】：D925.2
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