论看守所职能定位

发布时间：2019-06-05 07:13

【摘要】：规范我国看守所运行机制的《中华人民共和国看守所条例》是1990年3月17发布施行的。这部法规颁布施行以来,有力地保障了刑事诉讼活动的顺利进行,是国家建立依法羁押被逮捕、刑事拘留人犯法律制度的象征。可是二十多年来,在《看守所条例》的实施过程中也逐渐暴露出许多缺陷,例如在服务诉讼制度方面,范围设定相对较落后,影响了当前社会的公平与正义。因此,根据我国现行法律法规的规定,本文试从我国看守所的历史发展及现状着手,粗浅探讨是否应把看守所条例废止而进行看守所立法,重新定位看守所的职能,真正与新修订的《刑事诉讼法》相衔接服务以审判为中心的诉讼制度改革,进一步完善我国看守所的羁押制度。第一部分,我国看守所发展理论基础。首先,往上追溯我国建国至今看守所的发展历程,然后再引出看守所产生背景,再到国家制定《看守所条例》并按法定程序实施,经历了一个从无到有的漫长发展过程,最后引出看守所职能。其次,简要介绍看守所的概念、特点以及分类。最后,转入本文的正题,展开对看守所职能定位的研究,引出看守所职能范围。第二部分,我国看守所羁押制度与德、日两国相比较。从审前羁押制约因素入手,指出看守所羁押职能的确定直接关系着被羁押人员的权利保障,不仅受立法主观者的影响,而且也受到国家政治体制和法制理论等因素影响。而我国现行看守所条例存在的主要问题是：一是没有一部完整、全面的专门法律来规范看守所羁押行为；二是现有《看守所条例》规定的职能已经落后于当前法治形势发展,例如对羁押人员称呼为“人犯”等；三是目前仍然以侦查中心主义模式为主导,未完全实行侦羁分离制度,看守所以服务办案为主。第三部分,我国看守所职能拓展分析。随着社会法治进程的飞速发展,被羁押人员的权利受到越来越多的重视,世界各国也不止步地发展完善羁押制度,不间断强化保障羁押人员的权利,例如逐步规范侦查机关的侦查行为,科学合理的对看守所内在押人员的非正常死亡事件进行深层次追究。为了更好保护在押人员的权利,规范我国看守所职能范围,积极推进看守所立法非常有必要,这具有很强的现实意义：一是我国法治进程的必然结果；二是规范侦审行为的必然趋势；三是服务于以审判为中心的诉讼程序司法制度改革的必然要求；四是我国刑事法律体系完善成熟的必然体现。第四部分,我国看守所职能重新定位的立法设想。本文从我国看守所现状及发展历程入手,就看守所现有职能范围规范定位进行了探究。首先,在规范看守所羁押制度范围方面,笔者认为应该把未决在押人员和已决在押人员分开关押纳入立法规范范围。其次,在看守所上级主管部门方面,应该把看守所划归司法行政机关管辖,保持看守所的相对独立性,只有这样才能更好地保护被羁押人员的合法权益。
[Abstract]:The Regulations of the People's Republic of China on the operation mechanism of our country's watch-keeping operation are promulgated and implemented on March 17,1990. Since the enactment of this Regulation, the smooth progress of the criminal proceedings has been effectively guaranteed, which is a symbol of the State's establishment of the legal system for the arrest and the criminal detention of persons in custody according to law. But over the past two decades, many defects have been exposed in the course of the implementation of the Regulations of the People's Republic of China. For example, in the service litigation system, the scope setting is relatively backward, which affects the fairness and justice of the current society. Therefore, according to the provisions of the current laws and regulations in our country, this paper tries to study the historical development and the present situation of our country's observing and keeping, and probe into whether the regulations of the watch-keeping should be abolished and the legislation is to be seen, and the function of the watch-keeping is re-located. The system of detention in our country is further improved by the reform of the trial-centered legal system with the newly revised Code of Criminal Procedure. The first part is the theoretical basis of the development of our country. First, to go up to the development of our country's founding to the present so far, and then to draw out the background of the watch-keeping, and then to the state to formulate and implement the rules and procedures, and experience a long-term development process from the moment to the end, and finally lead out the function of the watch-keeping. Secondly, the concept, characteristics and classification of the watch-keeping are briefly introduced. In the end, the paper proceeds to the research on the function of the watch-keeping, and leads out the scope of the function of the watch-keeping. In the second part, the system of detention in our country is compared with that of Germany and Japan. Starting from the restriction factors of pre-trial detention, it is pointed out that the determination of the detention function in the custody is directly related to the security of the detainees' rights, which is not only influenced by the subjective of the legislation, but also influenced by the national political system and the legal system theory. The main problem of the existing regulations in our country is that there is no complete and comprehensive special law to regulate the behavior of the detention, and the other is that the functions of the existing rules and regulations have fallen behind the current situation of the rule of law. For example, the person in custody is referred to as the "a man's crime", and the third is still in the mode of investigation-centrism, and the investigation and separation system is not fully implemented, and the service case is the main case. The third part, the function development analysis of our country's watch-keeping. With the rapid development of the process of the rule of law in the society, the rights of the detainees have been paid more and more attention. Scientific and reasonable investigation of the abnormal death of the detainees in the custody. In order to protect the rights of the detainees, it is of great practical significance to regulate the scope of our country's watchkeeping, and to actively promote the legislation of the watchkeeping, which is of great practical significance: one is the inevitable result of the process of the rule of law in our country; The third is the necessity of service in the reform of the judicial system of the judicial system, which is the center of the trial, and the fourth is the inevitable reflection of the perfection of the criminal law system in our country. The fourth part is the legislative idea of the re-positioning of the function of the watchkeeping in our country. This paper starts with the present situation and the development course of our country's watch-keeping, and probes into the regulation and positioning of the existing function scope. First, in the context of the regulation of the scope of the detention system, the author believes that the outstanding detainees and the detainees have been detained separately in the scope of the legislative specification. Secondly, in the view of the competent authorities of the superior, the relative independence of the detention person should be kept, and the lawful rights and interests of the detained persons can be better protected.
【学位授予单位】：华中师范大学
【学位级别】：硕士
【学位授予年份】：2015
【分类号】：D631.7

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