美国刑事被告人强制取证权研究
发布时间：2018-08-12 20:00
【摘要】： 刑事被告人的强制取证权在许多国家的法律中都有规定,其中,美国的该项权利无论是在法律规定还是在实践应用层面都较为典型。本文以美国刑事被告人的强制取证权为研究对象,以美国联邦法院和州法院涉及这一权利的重要判例以及学者的学术论文为研究基点,介绍美国刑事被告人强制取证权的基本内容、判例发展以及其与相关制度之间的关系。最后从我国的视角对美国刑事被告人的强制取证权进行评析,并分析如何对美国的该项权利加以借鉴。文章共分四章: 第一章介绍强制取证权概念及价值。该章从国际公约对强制取证权的规定和部分国家法律对强制取证权的规定入手,引出强制取证权的概念。并着重从程序公正、发现真实和提高效率角度分析了强制取证权的价值,为后文的展开奠定基础。 第二章总结归纳美国刑事被告人强制取证权的要件。该章共分五部分:第一部分主要从空间范围和时间范围两个角度介绍强制取证权的适用范围;第二部分为强制取证权的主体,其中着重分析法官、检察官和陪审团对被告人的强制取证权所起的作用;第三部分为强制取证权的客体,重点区分了有利证人和不利证人的概念,论述强制取证的范围;第四部分借助一系列判例的发展引出强制取证权行使的条件;第五部分对法庭审理前和法庭审理中两个阶段强制取证权的内容进行归纳。 第三章重点分析了美国刑事被告人强制取证权与相关制度的关系。该章共分四部分:第一部分介绍强制取证权与宪法第六修正案规定的被告人其它权利的关系,包括与被告人对质权、与被告人律师帮助权以及与被告人有权获得陪审团审判权的关系;第二部分写强制取证权与传闻证据规则的关系;第三部分阐述了强制取证权与证人免证权发生冲突时该如何解决;第四部分介绍了当强制取证权与反对自我归罪权产生矛盾时的处理方法。 第四章阐述了美国刑事被告人强制取证权对我国的借鉴意义。该章共分三部分:第一部分是对美国强制取证权的中国式解读,客观地分析了强制取证权发展中的障碍以及该权利本身的一些不足,如:容易造成时间的浪费,不具有普适性,需要诸多制度支持等等;第二部分将目光转向我国法律,分析了当前我国相关法律对辩方强制取证的规定现状并对其进行了评价;第三部分论述了我国法律该如何借鉴美国这一制度,指出了在借鉴中应当注意的五大原则,并进行了具体的程序设计。
[Abstract]:The compulsory right to obtain evidence of a criminal defendant is stipulated in the laws of many countries, among which, this right in the United States is typical both in law and in practice. In this paper, the author takes the compulsory evidence right of the American criminal defendants as the research object, the important jurisprudence of the United States federal court and the state court concerning this right and the academic papers of the scholars as the basic point of the research. This paper introduces the basic content, the development of the case law and the relationship between the right of compulsory evidence collection and the related system in the United States. Finally, from the angle of our country, the author analyzes the compulsory right of the American criminal defendant, and analyzes how to draw lessons from the right of the American criminal defendant. The article is divided into four chapters: the first chapter introduces the concept and value of compulsory forensics. In this chapter, the concept of compulsory forensics right is introduced from the provisions of international conventions on compulsory forensics and the provisions of some national laws on compulsory forensics. From the point of procedural justice, the author analyzes the value of compulsory forensics right from the point of view of truthfulness and improvement of efficiency, which lays a foundation for the later article. The second chapter sums up the elements of compulsory evidence right of American criminal defendants. This chapter is divided into five parts: the first part mainly introduces the scope of application of compulsory forensics right from two angles of space scope and time scope; the second part is the subject of compulsory forensics right, in which the analysis of judges is emphasized. The third part is the object of compulsory evidence right, which focuses on the concept of favorable witness and unfavorable witness, and discusses the scope of forced evidence collection. The fourth part leads to the conditions of the enforcement of the right to obtain evidence with the help of the development of a series of cases. The fifth part summarizes the content of the compulsory right of taking evidence in the two stages of the court trial and the court trial. The third chapter focuses on the analysis of the relationship between the American criminal defendants' compulsory right to obtain evidence and relevant systems. This chapter is divided into four parts: the first part introduces the relationship between the compulsory right to take evidence and the other rights of the accused stipulated in the sixth Amendment of the Constitution, including the right to pledge with the defendant. The relationship between the right to assist the accused lawyer and the right of the defendant to be tried by jury. The second part deals with the relationship between the compulsory right to take evidence and hearsay evidence rules. The third part expounds how to solve the conflict between the compulsory evidence right and the witness exemption right, and the fourth part introduces how to deal with the contradiction between the compulsory evidence right and the right to oppose self-incrimination. The fourth chapter expounds the reference meaning of the American criminal defendant's compulsory evidence taking right to our country. This chapter is divided into three parts: the first part is a Chinese-style interpretation of the compulsory forensics right in the United States, which objectively analyzes the obstacles in the development of the compulsory forensics right and some shortcomings of the right itself, such as: it is easy to cause time waste and does not have universal applicability. The second part focuses on the law of our country, analyzes the current situation of the provisions of the relevant laws of our country on the compulsory collection of evidence by the defense, and evaluates it. The third part discusses how to draw lessons from the American system, points out five principles that should be paid attention to, and carries out the concrete program design.
【学位授予单位】：中国政法大学
【学位级别】：硕士
【学位授予年份】：2009
【分类号】：D971.2;DD915.3
本文编号：2180205
[Abstract]:The compulsory right to obtain evidence of a criminal defendant is stipulated in the laws of many countries, among which, this right in the United States is typical both in law and in practice. In this paper, the author takes the compulsory evidence right of the American criminal defendants as the research object, the important jurisprudence of the United States federal court and the state court concerning this right and the academic papers of the scholars as the basic point of the research. This paper introduces the basic content, the development of the case law and the relationship between the right of compulsory evidence collection and the related system in the United States. Finally, from the angle of our country, the author analyzes the compulsory right of the American criminal defendant, and analyzes how to draw lessons from the right of the American criminal defendant. The article is divided into four chapters: the first chapter introduces the concept and value of compulsory forensics. In this chapter, the concept of compulsory forensics right is introduced from the provisions of international conventions on compulsory forensics and the provisions of some national laws on compulsory forensics. From the point of procedural justice, the author analyzes the value of compulsory forensics right from the point of view of truthfulness and improvement of efficiency, which lays a foundation for the later article. The second chapter sums up the elements of compulsory evidence right of American criminal defendants. This chapter is divided into five parts: the first part mainly introduces the scope of application of compulsory forensics right from two angles of space scope and time scope; the second part is the subject of compulsory forensics right, in which the analysis of judges is emphasized. The third part is the object of compulsory evidence right, which focuses on the concept of favorable witness and unfavorable witness, and discusses the scope of forced evidence collection. The fourth part leads to the conditions of the enforcement of the right to obtain evidence with the help of the development of a series of cases. The fifth part summarizes the content of the compulsory right of taking evidence in the two stages of the court trial and the court trial. The third chapter focuses on the analysis of the relationship between the American criminal defendants' compulsory right to obtain evidence and relevant systems. This chapter is divided into four parts: the first part introduces the relationship between the compulsory right to take evidence and the other rights of the accused stipulated in the sixth Amendment of the Constitution, including the right to pledge with the defendant. The relationship between the right to assist the accused lawyer and the right of the defendant to be tried by jury. The second part deals with the relationship between the compulsory right to take evidence and hearsay evidence rules. The third part expounds how to solve the conflict between the compulsory evidence right and the witness exemption right, and the fourth part introduces how to deal with the contradiction between the compulsory evidence right and the right to oppose self-incrimination. The fourth chapter expounds the reference meaning of the American criminal defendant's compulsory evidence taking right to our country. This chapter is divided into three parts: the first part is a Chinese-style interpretation of the compulsory forensics right in the United States, which objectively analyzes the obstacles in the development of the compulsory forensics right and some shortcomings of the right itself, such as: it is easy to cause time waste and does not have universal applicability. The second part focuses on the law of our country, analyzes the current situation of the provisions of the relevant laws of our country on the compulsory collection of evidence by the defense, and evaluates it. The third part discusses how to draw lessons from the American system, points out five principles that should be paid attention to, and carries out the concrete program design.
【学位授予单位】：中国政法大学
【学位级别】：硕士
【学位授予年份】：2009
【分类号】：D971.2;DD915.3
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