我國(guó)刑事訴訟“交叉詢問(wèn)”構(gòu)建研究
發(fā)布時(shí)間：2018-10-18 20:26
【摘要】：交叉詢問(wèn)作為發(fā)現(xiàn)真實(shí),保障人權(quán)的證據(jù)調(diào)查規(guī)則,在刑事訴訟程序運(yùn)行的過(guò)程中對(duì)司法公正及公信力有著極其關(guān)鍵的作用。但是,我國(guó)刑事訴訟“交叉詢問(wèn)”的構(gòu)建長(zhǎng)期受偵查中心主義以及職權(quán)主義訴訟模式的影響,控辯雙方的對(duì)抗性不是太明顯,立法對(duì)具體的交叉詢問(wèn)規(guī)則如誘導(dǎo)性詢問(wèn)、禁止性詢問(wèn),以及交叉詢問(wèn)的對(duì)象、順序和交叉詢問(wèn)中法官的角色定位等未作出明確的規(guī)定,導(dǎo)致司法實(shí)務(wù)的運(yùn)行也不太規(guī)范。因此,在以審判為中心的刑事司法改革背景下,作為庭審實(shí)質(zhì)化的運(yùn)行規(guī)則之一的刑事訴訟“交叉詢問(wèn)”應(yīng)當(dāng)在我國(guó)當(dāng)前改良式的當(dāng)事人主義訴訟模式的框架下進(jìn)行構(gòu)建。在其具體的運(yùn)行構(gòu)成方面,包括其規(guī)則、對(duì)象、順序構(gòu)建等,借鑒美國(guó)交叉詢問(wèn)制度、德國(guó)輪替詢問(wèn)制度以及我國(guó)臺(tái)灣地區(qū)交互詰問(wèn)制度的長(zhǎng)處,并與我國(guó)的制度、政策、文化背景相結(jié)合,為我國(guó)構(gòu)建“交叉詢問(wèn)”在推動(dòng)庭審實(shí)質(zhì)化方面提供完善建議。本文采用比較研究、文獻(xiàn)研究、理論與實(shí)務(wù)相結(jié)合的研究方法,分為五部分對(duì)交叉詢問(wèn)進(jìn)行論述,其中:第一部分是引言。主要分析了本文對(duì)我國(guó)刑事訴訟“交叉詢問(wèn)”構(gòu)建進(jìn)行研究的背景與目的,并通過(guò)綜述國(guó)內(nèi)外研究概況,指出以往的交叉詢問(wèn)研究存在的不足,為本文的論述進(jìn)行鋪墊。第二部分是交叉詢問(wèn)的理論概述。從理論基礎(chǔ)的角度,對(duì)刑事訴訟交叉詢問(wèn)的涵義、概念解析、設(shè)計(jì)理念、原則和實(shí)踐效用進(jìn)行了論述,指出交叉詢問(wèn)是以人權(quán)保障,尤其是保障被告人質(zhì)證權(quán),以及訴訟參與為設(shè)計(jì)理念,以直接言詞審理和證據(jù)裁判主義為原則,其實(shí)踐效用不僅有利于發(fā)現(xiàn)案件真實(shí),而且能夠保障程序正義和提升司法公信力。第三部分是美國(guó)、德國(guó)和我國(guó)臺(tái)灣地區(qū)交叉詢問(wèn)的考察與借鑒。以比較研究的角度,考察了美國(guó)交叉詢問(wèn)、德國(guó)輪替詢問(wèn)和我國(guó)臺(tái)灣地區(qū)的交互詰問(wèn)的立法構(gòu)建與特點(diǎn),并就這些國(guó)家和地區(qū)對(duì)我國(guó)交叉詢問(wèn)構(gòu)建與完善的可借鑒之處作了相應(yīng)的分析。第四部分是我國(guó)刑事訴訟“交叉詢問(wèn)”的考察、存在的問(wèn)題。通過(guò)對(duì)我國(guó)刑事訴訟“交叉詢問(wèn)”的歷史發(fā)展和現(xiàn)狀的考察,指出了我國(guó)目前“交叉詢問(wèn)”的構(gòu)建在對(duì)象、順序、規(guī)則等法律規(guī)范方面存在的不足。第五部分是我國(guó)刑事訴訟“交叉詢問(wèn)”構(gòu)建的設(shè)想建議。針對(duì)本文第四部分所指出的問(wèn)題,借鑒第三部分中所考察的國(guó)家和地區(qū)的理論及立法,首先對(duì)本文所構(gòu)建的“交叉詢問(wèn)”進(jìn)行了介紹,然后從證人出庭制度和交叉詢問(wèn)的對(duì)象、順序、規(guī)則構(gòu)建和完善方面進(jìn)行了論述,指出我國(guó)刑事訴訟構(gòu)建“交叉詢問(wèn)”對(duì)象應(yīng)包含被告人和被害人,并應(yīng)通過(guò)立法明確被害人為控方證人。在規(guī)則的完善方面,應(yīng)當(dāng)明確誘導(dǎo)性詢問(wèn)規(guī)則、誤導(dǎo)性規(guī)則的適用,并對(duì)法官在交叉詢問(wèn)中的角色地位予以明確,以期推動(dòng)我國(guó)刑事訴訟“交叉詢問(wèn)”的順利開(kāi)展。
[Abstract]:Cross-examination, as a rule of discovery of truth and protection of human rights, plays an extremely important role in judicial justice and credibility in the course of criminal procedure. However, the construction of "cross-questioning" in criminal proceedings in our country has long been affected by investigative centrism and the mode of action of power doctrine, the antagonism between the prosecution and the defense is not obvious, and the specific cross-examination rules, such as inductive interrogation, are not obvious in the legislation. The prohibited questioning, the object of cross-questioning, the order and the role of judges in cross-questioning are not clearly defined, which leads to the operation of judicial practice is not very standard. Therefore, under the background of the criminal judicial reform centered on trial, the "cross-inquiry" of criminal procedure, as one of the substantive operating rules of the trial, should be constructed under the framework of the current improved litigant litigation mode in our country. In terms of its specific operation composition, including its rules, objects, sequential construction, and so on, drawing lessons from the American cross-examination system, the German alternate interrogation system and the strong points of China's Taiwan cross-examination system, and with the system and policy of our country, The combination of cultural background provides perfect suggestions for the construction of cross-inquiry in promoting the materialization of trial. This paper uses comparative research, literature research, theoretical and practical research methods, divided into five parts to discuss the cross-examination, among which: the first part is the introduction. This paper mainly analyzes the background and purpose of the research on the construction of "cross-questioning" in criminal proceedings in China, and points out the shortcomings of the previous cross-examination studies by summarizing the research situation at home and abroad, thus paving the way for the discussion in this paper. The second part is the theoretical overview of cross-examination. From the angle of theoretical basis, this paper discusses the meaning, concept analysis, design idea, principle and practical utility of cross-examination in criminal proceedings, and points out that cross-questioning is guaranteed by human rights, especially the right of cross-examination of defendants. As well as litigation participation as the design concept, the principle of direct speech trial and evidentiary adjudication, its practical utility is not only conducive to finding the case true, but also can ensure procedural justice and enhance the credibility of the judiciary. The third part is the investigation and reference of cross-inquiry between America, Germany and Taiwan. From the perspective of comparative research, this paper examines the legislative construction and characteristics of cross-questioning in the United States, alternate questioning in Germany and cross-questioning in Taiwan. This paper also analyzes the construction and perfection of cross-inquiry in these countries and regions. The fourth part is the investigation of cross-inquiry in criminal procedure in China. Based on the investigation of the historical development and present situation of "cross-inquiry" in criminal proceedings in China, this paper points out the shortcomings of the construction of cross-inquiry in the aspects of object, order, rule and other legal norms. The fifth part is the tentative suggestions on the construction of cross-inquiry in criminal procedure in China. In view of the problems pointed out in the fourth part of this paper, using the theory and legislation of the countries and regions examined in the third part as reference, this paper first introduces the "cross-examination" constructed in this paper, and then introduces the system of witnesses appearing in court and the object of cross-examination. This paper discusses on the construction and perfection of the order, rules and regulations, and points out that the object of cross-examination should include the defendant and the victim, and that the victim should be defined as the prosecution witness through legislation. As for the perfection of the rules, the rules of inductive questioning and the application of misleading rules should be made clear, and the role of judges in cross-examination should be clarified in order to promote the smooth development of cross-examination in criminal proceedings in China.
【學(xué)位授予單位】：四川師范大學(xué)
【學(xué)位級(jí)別】：碩士
【學(xué)位授予年份】：2017
【分類(lèi)號(hào)】：D925.2
本文編號(hào)：2280275
[Abstract]:Cross-examination, as a rule of discovery of truth and protection of human rights, plays an extremely important role in judicial justice and credibility in the course of criminal procedure. However, the construction of "cross-questioning" in criminal proceedings in our country has long been affected by investigative centrism and the mode of action of power doctrine, the antagonism between the prosecution and the defense is not obvious, and the specific cross-examination rules, such as inductive interrogation, are not obvious in the legislation. The prohibited questioning, the object of cross-questioning, the order and the role of judges in cross-questioning are not clearly defined, which leads to the operation of judicial practice is not very standard. Therefore, under the background of the criminal judicial reform centered on trial, the "cross-inquiry" of criminal procedure, as one of the substantive operating rules of the trial, should be constructed under the framework of the current improved litigant litigation mode in our country. In terms of its specific operation composition, including its rules, objects, sequential construction, and so on, drawing lessons from the American cross-examination system, the German alternate interrogation system and the strong points of China's Taiwan cross-examination system, and with the system and policy of our country, The combination of cultural background provides perfect suggestions for the construction of cross-inquiry in promoting the materialization of trial. This paper uses comparative research, literature research, theoretical and practical research methods, divided into five parts to discuss the cross-examination, among which: the first part is the introduction. This paper mainly analyzes the background and purpose of the research on the construction of "cross-questioning" in criminal proceedings in China, and points out the shortcomings of the previous cross-examination studies by summarizing the research situation at home and abroad, thus paving the way for the discussion in this paper. The second part is the theoretical overview of cross-examination. From the angle of theoretical basis, this paper discusses the meaning, concept analysis, design idea, principle and practical utility of cross-examination in criminal proceedings, and points out that cross-questioning is guaranteed by human rights, especially the right of cross-examination of defendants. As well as litigation participation as the design concept, the principle of direct speech trial and evidentiary adjudication, its practical utility is not only conducive to finding the case true, but also can ensure procedural justice and enhance the credibility of the judiciary. The third part is the investigation and reference of cross-inquiry between America, Germany and Taiwan. From the perspective of comparative research, this paper examines the legislative construction and characteristics of cross-questioning in the United States, alternate questioning in Germany and cross-questioning in Taiwan. This paper also analyzes the construction and perfection of cross-inquiry in these countries and regions. The fourth part is the investigation of cross-inquiry in criminal procedure in China. Based on the investigation of the historical development and present situation of "cross-inquiry" in criminal proceedings in China, this paper points out the shortcomings of the construction of cross-inquiry in the aspects of object, order, rule and other legal norms. The fifth part is the tentative suggestions on the construction of cross-inquiry in criminal procedure in China. In view of the problems pointed out in the fourth part of this paper, using the theory and legislation of the countries and regions examined in the third part as reference, this paper first introduces the "cross-examination" constructed in this paper, and then introduces the system of witnesses appearing in court and the object of cross-examination. This paper discusses on the construction and perfection of the order, rules and regulations, and points out that the object of cross-examination should include the defendant and the victim, and that the victim should be defined as the prosecution witness through legislation. As for the perfection of the rules, the rules of inductive questioning and the application of misleading rules should be made clear, and the role of judges in cross-examination should be clarified in order to promote the smooth development of cross-examination in criminal proceedings in China.
【學(xué)位授予單位】：四川師范大學(xué)
【學(xué)位級(jí)別】：碩士
【學(xué)位授予年份】：2017
【分類(lèi)號(hào)】：D925.2
【參考文獻(xiàn)】
相關(guān)重要報(bào)紙文章 前1條
1 樊崇義;;“以審判為中心”的概念、目標(biāo)和實(shí)現(xiàn)路徑[N];人民法院報(bào);2015年
，本文編號(hào)：2280275
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