“一對一”強奸案中印證模式的適用問題研究
發(fā)布時間：2018-09-18 17:04
【摘要】：“一對一”強奸案件的證據(jù)采信問題一直是司法實踐中的難題，為解決這一難題，我國法學界也進行了諸多討論，而導致我國此類案件難以認定的原因在于：一方面，“一對一”強奸案自身的特殊性決定了該類案件的認定難度，一是在案證據(jù)匱乏，且多為具有不穩(wěn)定性的言詞證據(jù)，二是在是否違背婦女意志的證明上較其他“一對一”案件更加復雜。另一方面，實踐中，我國司法機關采取的是一種相互印證的證明模式，由于過分強調印證，使得“一對一”案件成為訴訟證明上的難題，這種高標準的證明模式在“一對一”強奸案的適用中更是暴露出了許多不足之處，因此，我們需要對突破此類案件的審理難題給予思考。 本文包括引言、正文和結語三個部分，正文一共約2.1萬字。 第一部分先對“一對一”強奸案的特點作了初步說明，其次結合對公訴部門4位檢察官和刑事審判庭4位法官的訪談，將在實務中認定此類案件的具體思路予以整理。 第二部分是對印證模式在“一對一”強奸案中的適用加以分析。首先闡釋了印證模式的特點、實質及自身優(yōu)勢，，并與自由心證制度作了區(qū)分。其次通過具體的案例來說明實務中是如何采信此類案件的證據(jù)并予以認定的。 第三部分著重分析了印證模式在“一對一”強奸案適用中存在的不足。首先，印證模式強調證據(jù)間的客觀印證，追求證據(jù)數(shù)量的簡單堆砌，而不注重證據(jù)之間的內在聯(lián)系，導致形成很高的證明標準，使實踐中有相當數(shù)量的“一對一”強奸案件因印證性不夠，而不能達到證據(jù)確實充分的證明標準。其次，針對此類案件的特殊性，我國司法人員在審理“一對一”強奸案時必不可少的會適用“經驗法則”，即使在我國相互印證模式下，法官也必須先對每個證據(jù)的真實性作出判斷，而在對各個證據(jù)的三性進行分析和評判時，便會自覺或不自覺的運用到“經驗法則”。但由于個體認識的差異性以及“經驗法則”的非規(guī)范化，導致實務中司法人員對“經驗法則”的使用仍然存在一定的危險。再次，“一對一”強奸案直接證據(jù)相互對立，間接證據(jù)匱乏，為了查明事實，法官當然希望到案的證據(jù)越多越好，但由于無法切實履行直接言詞審理，證人、被害人出庭率極低，導致大量傳聞證據(jù)進入法庭，損害了當事人的對質權，也不利于事實真相的發(fā)現(xiàn)。最后，在新刑訴法的貫徹實施下，人權保障原則和不得強迫自證其罪原則的確立，一系列保障人權防止刑訊逼供等非法取證措施的強化，使印證體系的適用面臨著巨大的挑戰(zhàn)。 第四部分則是對“一對一”強奸案證明模式的進一步思考。通過上文的分析，提出自己的觀點，重構我國自由心證制度，全面落實自由心證的證明模式，借鑒其合理因素，使相互印證僅僅成為證明方法之一，而不再是證明模式、辦案模式。并提出一些配套制度的改進，如提高法官辦案素質、心證公開；進一步推進司法獨立；規(guī)范經驗法則的運用；堅持直接言詞原則，強化證人、被害人出庭作證等，為自由心證制度的合理運用提供一個良好的環(huán)境和條件。
[Abstract]:The problem of evidence acceptance in "one-to-one" rape cases has always been a difficult problem in judicial practice. To solve this problem, many discussions have been carried out in the legal circles of our country. The reasons why it is difficult to identify such cases are as follows: on the one hand, the particularity of "one-to-one" rape cases determines the difficulty of identifying such cases. On the other hand, in practice, the judicial organs of our country adopt a pattern of mutual confirmation, which makes "one-to-one" cases become litigation because of the excessive emphasis on confirmation. The difficult problem of proof, this high standard of proof mode in the "one-to-one" rape case is exposed in the application of many shortcomings, therefore, we need to break through the trial of such cases to give thought.
This article consists of three parts: introduction, text and conclusion, with a total of about 2.1 words.
The first part of the "one-to-one" rape case made a preliminary description of the characteristics, followed by the prosecution department of four prosecutors and four judges of the criminal trial court interviews, the practice of such cases will be identified in the specific ideas to be sorted out.
The second part is to analyze the application of the confirmation model in the "one-to-one" rape cases. Firstly, it explains the characteristics, essence and advantages of the confirmation model, and distinguishes it from the system of free evaluation of evidence. Secondly, it illustrates how to accept and identify the evidence of such cases through specific cases.
The third part focuses on the analysis of the shortcomings of the confirmation model in the application of "one-to-one" rape cases. First of all, the confirmation model emphasizes the objective confirmation between the evidence, seeks the simple stacking of the number of evidence, but does not pay attention to the internal links between the evidence, resulting in the formation of a high standard of proof, so that there is a considerable number of "one-to-one" in practice. Secondly, in view of the particularity of this kind of cases, the judicial personnel in our country will be indispensable to apply the "rule of experience" in the trial of "one-to-one" rape cases. Even in the mode of mutual verification in our country, the judge must first make the authenticity of each evidence. Judgement is made, and the "rule of experience" will be used consciously or unconsciously when analyzing and judging the three properties of each evidence. However, due to the difference of individual cognition and the non-standardization of the "rule of experience", there are still some dangers in the use of the "rule of experience" by judicial personnel in practice. "In rape cases, direct evidence is opposed to each other and indirect evidence is scarce. In order to find out the facts, the judges certainly hope that the more evidence in the case, the better. However, due to the failure to effectively carry out direct verbal trials, witnesses and victims appear in court at a very low rate, resulting in a large number of hearsay evidence into the court, undermining the right of the parties to pledge, and not conducive to the truth of the facts. Finally, with the implementation of the new Criminal Procedure Law, the establishment of the principles of human rights protection and the principle of not forcing self-incrimination, and the intensification of a series of measures to protect human rights against extorting confessions by torture, the application of the verification system is facing great challenges.
The fourth part is a further reflection on the "one-to-one" proof mode in rape cases. Through the analysis above, the author puts forward his own views, reconstructs the system of free evaluation of evidence in China, implements the proof mode of free evaluation of evidence in an all-round way, and uses its reasonable factors for reference, so that mutual verification is only one of the methods of proof, not the mode of proof and the mode of handling cases. And put forward some improvement of the supporting system, such as improving the quality of the judges handling cases, making the evidence public, further promoting judicial independence, standardizing the use of empirical rules, adhering to the principle of direct speech, strengthening witnesses, victims to testify in court and so on, to provide a good environment and conditions for the rational use of the system of free trial of evidence.
【學位授予單位】：西南政法大學
【學位級別】：碩士
【學位授予年份】：2014
【分類號】：D925.2
本文編號：2248557
[Abstract]:The problem of evidence acceptance in "one-to-one" rape cases has always been a difficult problem in judicial practice. To solve this problem, many discussions have been carried out in the legal circles of our country. The reasons why it is difficult to identify such cases are as follows: on the one hand, the particularity of "one-to-one" rape cases determines the difficulty of identifying such cases. On the other hand, in practice, the judicial organs of our country adopt a pattern of mutual confirmation, which makes "one-to-one" cases become litigation because of the excessive emphasis on confirmation. The difficult problem of proof, this high standard of proof mode in the "one-to-one" rape case is exposed in the application of many shortcomings, therefore, we need to break through the trial of such cases to give thought.
This article consists of three parts: introduction, text and conclusion, with a total of about 2.1 words.
The first part of the "one-to-one" rape case made a preliminary description of the characteristics, followed by the prosecution department of four prosecutors and four judges of the criminal trial court interviews, the practice of such cases will be identified in the specific ideas to be sorted out.
The second part is to analyze the application of the confirmation model in the "one-to-one" rape cases. Firstly, it explains the characteristics, essence and advantages of the confirmation model, and distinguishes it from the system of free evaluation of evidence. Secondly, it illustrates how to accept and identify the evidence of such cases through specific cases.
The third part focuses on the analysis of the shortcomings of the confirmation model in the application of "one-to-one" rape cases. First of all, the confirmation model emphasizes the objective confirmation between the evidence, seeks the simple stacking of the number of evidence, but does not pay attention to the internal links between the evidence, resulting in the formation of a high standard of proof, so that there is a considerable number of "one-to-one" in practice. Secondly, in view of the particularity of this kind of cases, the judicial personnel in our country will be indispensable to apply the "rule of experience" in the trial of "one-to-one" rape cases. Even in the mode of mutual verification in our country, the judge must first make the authenticity of each evidence. Judgement is made, and the "rule of experience" will be used consciously or unconsciously when analyzing and judging the three properties of each evidence. However, due to the difference of individual cognition and the non-standardization of the "rule of experience", there are still some dangers in the use of the "rule of experience" by judicial personnel in practice. "In rape cases, direct evidence is opposed to each other and indirect evidence is scarce. In order to find out the facts, the judges certainly hope that the more evidence in the case, the better. However, due to the failure to effectively carry out direct verbal trials, witnesses and victims appear in court at a very low rate, resulting in a large number of hearsay evidence into the court, undermining the right of the parties to pledge, and not conducive to the truth of the facts. Finally, with the implementation of the new Criminal Procedure Law, the establishment of the principles of human rights protection and the principle of not forcing self-incrimination, and the intensification of a series of measures to protect human rights against extorting confessions by torture, the application of the verification system is facing great challenges.
The fourth part is a further reflection on the "one-to-one" proof mode in rape cases. Through the analysis above, the author puts forward his own views, reconstructs the system of free evaluation of evidence in China, implements the proof mode of free evaluation of evidence in an all-round way, and uses its reasonable factors for reference, so that mutual verification is only one of the methods of proof, not the mode of proof and the mode of handling cases. And put forward some improvement of the supporting system, such as improving the quality of the judges handling cases, making the evidence public, further promoting judicial independence, standardizing the use of empirical rules, adhering to the principle of direct speech, strengthening witnesses, victims to testify in court and so on, to provide a good environment and conditions for the rational use of the system of free trial of evidence.
【學位授予單位】：西南政法大學
【學位級別】：碩士
【學位授予年份】：2014
【分類號】：D925.2
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