刑事案卷移送制度與庭審實質(zhì)化研究
發(fā)布時間：2019-05-29 03:05
【摘要】：刑事案卷移送制度和庭審實質(zhì)化一直是我國理論界關注的熱點問題。在我國凡是關于刑事案卷移送制度的研究大都會涉及到案卷移送制度對庭審實質(zhì)化影響的問題。我國在2012年新的刑事訴訟法中,重新確立了全案移送制度,將自然而然地讓人思考其對我國庭審實質(zhì)化的影響。 案卷移送制度作為連接審前程序和審判程序的方式,在不同國家和地區(qū)主要有三種表現(xiàn)形式：全案移送制度,起訴狀一本主義以及限制移送制度。而庭審實質(zhì)化作為中國特殊語境下的產(chǎn)物,與庭審形式化、過場化相對應。不同的案卷移送制度,對庭審實質(zhì)化的影響會有不同。 具體來說,大陸法系國家多采用全案移送制度,比如德國。為了實現(xiàn)庭審實質(zhì)化,德國通過在庭審中貫徹直接言詞原則與集中審理原則,在整個訴訟階段賦予辯方充分的閱卷權(quán)和申請調(diào)查取證權(quán),并且規(guī)定法官裁判理由的公開等措施保證庭審實質(zhì)化的實現(xiàn)；當事人主義國家主要實行起訴狀一本主義的案卷移送方式,比如美國就是起訴狀一本主義的代表。為了實現(xiàn)庭審實質(zhì)化,美國制定了證據(jù)開示、交叉詢問等制度措施；意大利作為混合制訴訟模式的代表國家,其采取限制移送制度,并利用法官的雙重身份、增強控辯雙方的對坑等措施實現(xiàn)庭審實質(zhì)化。 我國案卷移送制度在1979年是全案移送加庭前實質(zhì)審查模式,這種模式下我國庭審形式化嚴重。1996年確立復印件主義移送方式,希望通過限制法官庭前接觸的案卷范圍解決庭審形式化問題,但是,由于庭后全案移送制度的誕生,依然沒有改變我國庭審形式化嚴重的問題。2012年新刑事訴訟法重新確立全案移送制度,這不禁使我們深思僅僅通過改變案卷移送制度不能解決庭審形式化問題。 通過對我國歷年案卷移送制度的演變以及其對我國庭審實質(zhì)化的影響的研究可以看出導致我國庭審形式化的根本原因是法官閱卷審判主義。受犯罪控制理念和程序工具主義的影響,直接言詞證據(jù)的缺失,法庭之外形成裁判的司法文化以及以閱卷為主的復審制度等四個方面是產(chǎn)生法官閱卷審判的深層次原因。立足于全案移送制度,確立審判中心主義、完善庭前會議制度、貫徹執(zhí)行直接言詞原則、塑造法官獨立環(huán)境、強調(diào)判決說理等是實現(xiàn)我國庭審實質(zhì)化的關鍵配套措施。
[Abstract]:The transfer system of criminal case file and the materialization of trial have always been hot issues in the theoretical circle of our country. In our country, the research on the transfer system of criminal case file involves the influence of case file transfer system on the quality of trial. In the new criminal procedure law of 2012, the whole case transfer system has been re-established, which will naturally make people think about its influence on the materialization of the trial in our country. As a way of connecting the pre-trial procedure and the trial procedure, the case file transfer system has three main forms in different countries and regions: the whole case transfer system, the prosecution form doctrine and the restriction transfer system. As the product of Chinese special context, the materialization of trial corresponds to the formalization and passing of trial. Different file transfer systems will have different effects on the quality of the trial. Specifically, civil law countries use the whole case transfer system, such as Germany. In order to realize the materialization of the trial, Germany gave the defense full right to read papers and apply for the right to investigate and obtain evidence through the implementation of the principle of direct speech and the principle of centralized trial in the trial. And stipulate the judge to decide the reason of the public and other measures to ensure the realization of the materialization of the trial; The litigant countries mainly carry out the case file transfer mode of pleadings, for example, the United States is the representative of the doctrine of prosecution. In order to realize the materialization of the trial, the United States has formulated some institutional measures, such as the disclosure of evidence, cross-examination and so on. Italy, as the representative country of the mixed system litigation mode, adopts the system of restricting the transfer, and makes use of the dual identity of the judge to strengthen the confrontation between the prosecution and the defense to realize the materialization of the trial. In 1979, the transfer system of the case file in our country was the mode of substantive examination before the whole case was transferred to the court. Under this mode, the formalization of the trial in our country is serious. In 1996, the photocopy doctrine transfer mode was established. It is hoped that the formal problem of trial will be solved by limiting the scope of pre-court contact of judges. However, due to the birth of the whole case transfer system after court, There is still no serious problem of changing the formalization of the trial in our country. In 2012, the new criminal procedure law re-established the whole case transfer system, which makes us ponder that the formal problem of the trial can not be solved only by changing the transfer system of the case file. Through the study of the evolution of the case file transfer system in our country over the years and its influence on the materialization of the trial in our country, we can see that the fundamental reason for the formalization of the trial in our country is the judge reading and judging doctrine. Under the influence of the concept of crime control and procedural instrumentalism, the lack of direct speech evidence, the formation of judicial culture outside the court and the review system based on marking are the deep reasons for the judge's reading and trial. Based on the whole case transfer system, the establishment of trial centralism, the improvement of the pre-court meeting system, the implementation of the principle of direct speech, the shaping of the independent environment of judges, and the emphasis on the reasoning of judgment are the key supporting measures to realize the materialization of the trial in our country.
【學位授予單位】：安徽大學
【學位級別】：碩士
【學位授予年份】：2014
【分類號】：D925.2
本文編號：2487586
[Abstract]:The transfer system of criminal case file and the materialization of trial have always been hot issues in the theoretical circle of our country. In our country, the research on the transfer system of criminal case file involves the influence of case file transfer system on the quality of trial. In the new criminal procedure law of 2012, the whole case transfer system has been re-established, which will naturally make people think about its influence on the materialization of the trial in our country. As a way of connecting the pre-trial procedure and the trial procedure, the case file transfer system has three main forms in different countries and regions: the whole case transfer system, the prosecution form doctrine and the restriction transfer system. As the product of Chinese special context, the materialization of trial corresponds to the formalization and passing of trial. Different file transfer systems will have different effects on the quality of the trial. Specifically, civil law countries use the whole case transfer system, such as Germany. In order to realize the materialization of the trial, Germany gave the defense full right to read papers and apply for the right to investigate and obtain evidence through the implementation of the principle of direct speech and the principle of centralized trial in the trial. And stipulate the judge to decide the reason of the public and other measures to ensure the realization of the materialization of the trial; The litigant countries mainly carry out the case file transfer mode of pleadings, for example, the United States is the representative of the doctrine of prosecution. In order to realize the materialization of the trial, the United States has formulated some institutional measures, such as the disclosure of evidence, cross-examination and so on. Italy, as the representative country of the mixed system litigation mode, adopts the system of restricting the transfer, and makes use of the dual identity of the judge to strengthen the confrontation between the prosecution and the defense to realize the materialization of the trial. In 1979, the transfer system of the case file in our country was the mode of substantive examination before the whole case was transferred to the court. Under this mode, the formalization of the trial in our country is serious. In 1996, the photocopy doctrine transfer mode was established. It is hoped that the formal problem of trial will be solved by limiting the scope of pre-court contact of judges. However, due to the birth of the whole case transfer system after court, There is still no serious problem of changing the formalization of the trial in our country. In 2012, the new criminal procedure law re-established the whole case transfer system, which makes us ponder that the formal problem of the trial can not be solved only by changing the transfer system of the case file. Through the study of the evolution of the case file transfer system in our country over the years and its influence on the materialization of the trial in our country, we can see that the fundamental reason for the formalization of the trial in our country is the judge reading and judging doctrine. Under the influence of the concept of crime control and procedural instrumentalism, the lack of direct speech evidence, the formation of judicial culture outside the court and the review system based on marking are the deep reasons for the judge's reading and trial. Based on the whole case transfer system, the establishment of trial centralism, the improvement of the pre-court meeting system, the implementation of the principle of direct speech, the shaping of the independent environment of judges, and the emphasis on the reasoning of judgment are the key supporting measures to realize the materialization of the trial in our country.
【學位授予單位】：安徽大學
【學位級別】：碩士
【學位授予年份】：2014
【分類號】：D925.2
【參考文獻】
相關期刊論文 前6條
1 郭松;;庭前公訴案卷移送制度改革新論——以庭審實質(zhì)化為中心的討論[J];福建公安高等專科學校學報;2007年04期
2 申文寬;;案卷移送、庭前預斷與公正審判的關系[J];廣西政法管理干部學院學報;2012年06期
3 薛萍;;論公訴案卷移送制度[J];黑龍江省政法管理干部學院學報;2008年06期
4 沈源洲;;論起訴狀一本主義的功能缺失——以日本刑事訴訟法為范本的考察[J];鐵道警官高等�？茖W校學報;2011年01期
5 孫長永;審判中心主義及其對刑事程序的影響[J];現(xiàn)代法學;1999年04期
6 陳瑞華;;案卷移送制度的演變與反思[J];政法論壇;2012年05期
相關碩士學位論文 前1條
1 張子才;論我國刑事案卷移送制度的完善[D];中國社會科學院研究生院;2013年
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