職務犯罪案件言詞證據(jù)研究
發(fā)布時間：2018-12-26 16:01
【摘要】：證據(jù)是刑事訴訟的核心問題,而言詞證據(jù)之于職務犯罪案件而言更是重中之重。近年來因言詞證據(jù)收集問題導致不起訴或者無罪判決的貪污案件并不鮮見,值得思考和總結(jié)的地方很多。職務犯罪案件中言詞證據(jù)的重要作用加上其自身特點,使得打擊腐敗的難度加大。從職務犯罪類型的特殊性、職務犯罪案件偵查的特殊性以及職務犯罪案件中言詞證據(jù)的特殊性都可以考量,職務犯罪的主體為特殊群體,擁有較強的法律素養(yǎng)和反偵查意識,同時職務犯罪的手段多隱蔽,較難發(fā)現(xiàn),這些特點決定了職務犯罪案件偵查路徑通常是"由人查事",必然突顯了言詞證據(jù)在其中的重要地位。職務犯罪案件言詞證據(jù)的適用也不同于一般案件,從證據(jù)適用角度能夠看出職務犯罪自身特點,并以此為基礎,分析職務犯罪案件在言詞證據(jù)的收集、審查、質(zhì)證、認證以及非法證據(jù)排除等方面的特殊性,從各個角度出發(fā),分析職務犯罪案件言詞證據(jù)存在的具體問題,并針對問題提出解決方案。正是基于職務犯罪種種特殊之處,決定了職務犯罪案件中言詞證據(jù)的收集與固定不同于一般案件。實踐中,職務犯罪案件言詞證據(jù)的收集與固定存在多方面的問題,如認定和使用證據(jù)不全,輕信" 口供"的作用,不重視收集無罪證據(jù)等;在職務犯罪案件中對于言詞證據(jù)的收集與固定還存在許多難點,如職務犯罪案件中證據(jù)尤其是言詞證據(jù)的易變性;對于證人證言的收集最重要的就是保障證人意志自由,徹底貫徹自白任意性規(guī)則,對于職務犯罪案件這類特殊案件,證人多數(shù)情況為涉案人員,探索污點證人制度的構(gòu)建,主要構(gòu)建職務犯罪案件中的刑事豁免權(quán)制度,同時在一定程度上保證"污點證人"及其親屬的人身安全,這些措施將對于反腐工作可能會有促進意義。證據(jù)審查或稱證據(jù)的認定是證明的關鍵,審查內(nèi)容主要是證據(jù)的"三性",而從整體而言,應當符合證據(jù)之間相互印證、證據(jù)組合形成體系等標準。實踐中對于職務犯罪案件言詞證據(jù)的審查存在一些困境,如言詞證據(jù)的不穩(wěn)定性與證據(jù)審查的確定性之間存在沖突等,對此需要探索具體對策。在職務犯罪案件中,紀委監(jiān)察機關移送材料和檢察院初查獲取證據(jù)材料經(jīng)常涉及其中,由于這兩種證據(jù)材料的收集并不在刑事訴訟程序中,因此對于此二者的可采性以及相關轉(zhuǎn)化程序也需深入研究。職務犯罪案件中非法言詞證據(jù)的排除對于職務犯罪案件言詞證據(jù)的準確運用具有重要意義,也是職務犯罪案件言詞證據(jù)審查認定的最終目的之一。經(jīng)審查確定為非法言詞證據(jù)的,應當絕對排除,不得作為定案證據(jù)。然而實踐中對于非法言詞證據(jù)的排除卻存在一些困難,主要是由于職務犯罪案件對于言詞證據(jù)的依賴性過高等原因所致,對此可以通過弱化言詞證據(jù)的證明作用、完善非法證據(jù)排除的證明責任分配等措施予以解決。
[Abstract]:Evidence is the core of criminal procedure, and verbal evidence is the most important in duty crime cases. In recent years, the corruption cases caused by the problem of verbal evidence collection are not uncommon, which is worth thinking and summing up. The important role of verbal evidence in duty crime cases and its own characteristics make it more difficult to combat corruption. Considering the particularity of duty crime type, the particularity of duty crime case investigation and the particularity of verbal evidence in duty crime case, the subject of duty crime is a special group, which has strong legal literacy and anti-investigation consciousness. At the same time, it is difficult to find that the methods of duty crime are more covert. These characteristics determine that the investigation path of duty crime cases is usually "investigated by people", which inevitably highlights the important position of verbal evidence in it. The application of verbal evidence in job-related crime cases is also different from that in general cases. From the point of view of evidence application, we can see the characteristics of job-related crimes, and on this basis, we can analyze the collection, examination and cross-examination of verbal evidence in job-related crime cases. Based on the particularity of authentication and the exclusion of illegal evidence, this paper analyzes the concrete problems existing in the verbal evidence of duty crime cases from various angles, and puts forward solutions to the problems. It is on the basis of the special features of duty crime that the collection and fixation of verbal evidence in duty crime cases are different from ordinary cases. In practice, there are many problems in the collection and fixation of verbal evidence in duty crime cases, such as the incomplete identification and use of evidence, the credulity of "confession", and the lack of attention to the collection of innocent evidence. There are still many difficulties in the collection and fixation of verbal evidence in job-related crime cases, such as the variability of evidence, especially verbal evidence, in job-related crime cases; For the collection of witness testimony, the most important thing is to protect the free will of witnesses and thoroughly implement the rules of arbitrariness in confessions. For such special cases as job-related crimes, the majority of witnesses are the persons involved, so as to explore the construction of the system of tainted witnesses. This paper mainly constructs the criminal immunity system in the case of job-related crimes, and at the same time, to a certain extent, ensures the personal safety of the "tainted witness" and their relatives. These measures will promote the anti-corruption work. Evidence examination or identification of evidence is the key of proof. The content of examination is mainly the "three properties" of evidence, but on the whole, it should conform to the standards of mutual confirmation between evidence and the system of formation of evidence combination and so on. In practice, there are some difficulties in the examination of verbal evidence in job-related crime cases, such as the conflict between the instability of verbal evidence and the certainty of evidence review, etc. In cases of job-related crimes, the materials transferred by the discipline Inspection Commission and the procuratorates to obtain evidence are often involved. Since the collection of these two kinds of evidence materials is not in criminal proceedings, Therefore, the admissibility of the two and related transformation procedures also need to be further studied. The exclusion of illegal verbal evidence in job-related crime cases is of great significance for the accurate use of verbal evidence in job-related crime cases, and is also one of the ultimate purposes of examining and determining verbal evidence in job-related crimes cases. If the evidence is determined to be illegal after examination, it shall be absolutely excluded and shall not be used as conclusive evidence. However, in practice, there are some difficulties in excluding illegal verbal evidence, mainly due to the excessive dependence on verbal evidence in job-related crime cases, which can be proved by weakening the proof of verbal evidence. Measures such as perfecting the distribution of burden of proof to exclude illegal evidence will be solved.
【學位授予單位】：安徽大學
【學位級別】：碩士
【學位授予年份】：2017
【分類號】：D925.2
本文編號：2392358
[Abstract]:Evidence is the core of criminal procedure, and verbal evidence is the most important in duty crime cases. In recent years, the corruption cases caused by the problem of verbal evidence collection are not uncommon, which is worth thinking and summing up. The important role of verbal evidence in duty crime cases and its own characteristics make it more difficult to combat corruption. Considering the particularity of duty crime type, the particularity of duty crime case investigation and the particularity of verbal evidence in duty crime case, the subject of duty crime is a special group, which has strong legal literacy and anti-investigation consciousness. At the same time, it is difficult to find that the methods of duty crime are more covert. These characteristics determine that the investigation path of duty crime cases is usually "investigated by people", which inevitably highlights the important position of verbal evidence in it. The application of verbal evidence in job-related crime cases is also different from that in general cases. From the point of view of evidence application, we can see the characteristics of job-related crimes, and on this basis, we can analyze the collection, examination and cross-examination of verbal evidence in job-related crime cases. Based on the particularity of authentication and the exclusion of illegal evidence, this paper analyzes the concrete problems existing in the verbal evidence of duty crime cases from various angles, and puts forward solutions to the problems. It is on the basis of the special features of duty crime that the collection and fixation of verbal evidence in duty crime cases are different from ordinary cases. In practice, there are many problems in the collection and fixation of verbal evidence in duty crime cases, such as the incomplete identification and use of evidence, the credulity of "confession", and the lack of attention to the collection of innocent evidence. There are still many difficulties in the collection and fixation of verbal evidence in job-related crime cases, such as the variability of evidence, especially verbal evidence, in job-related crime cases; For the collection of witness testimony, the most important thing is to protect the free will of witnesses and thoroughly implement the rules of arbitrariness in confessions. For such special cases as job-related crimes, the majority of witnesses are the persons involved, so as to explore the construction of the system of tainted witnesses. This paper mainly constructs the criminal immunity system in the case of job-related crimes, and at the same time, to a certain extent, ensures the personal safety of the "tainted witness" and their relatives. These measures will promote the anti-corruption work. Evidence examination or identification of evidence is the key of proof. The content of examination is mainly the "three properties" of evidence, but on the whole, it should conform to the standards of mutual confirmation between evidence and the system of formation of evidence combination and so on. In practice, there are some difficulties in the examination of verbal evidence in job-related crime cases, such as the conflict between the instability of verbal evidence and the certainty of evidence review, etc. In cases of job-related crimes, the materials transferred by the discipline Inspection Commission and the procuratorates to obtain evidence are often involved. Since the collection of these two kinds of evidence materials is not in criminal proceedings, Therefore, the admissibility of the two and related transformation procedures also need to be further studied. The exclusion of illegal verbal evidence in job-related crime cases is of great significance for the accurate use of verbal evidence in job-related crime cases, and is also one of the ultimate purposes of examining and determining verbal evidence in job-related crimes cases. If the evidence is determined to be illegal after examination, it shall be absolutely excluded and shall not be used as conclusive evidence. However, in practice, there are some difficulties in excluding illegal verbal evidence, mainly due to the excessive dependence on verbal evidence in job-related crime cases, which can be proved by weakening the proof of verbal evidence. Measures such as perfecting the distribution of burden of proof to exclude illegal evidence will be solved.
【學位授予單位】：安徽大學
【學位級別】：碩士
【學位授予年份】：2017
【分類號】：D925.2
【參考文獻】
相關期刊論文 前1條
1 滑俊杰;;職務犯罪偵查階段證據(jù)審查機制的建立和完善[J];人民檢察;2013年18期
，本文編號：2392358
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