论我国警察盘查权的程序定位与完善

发布时间：2018-01-19 19:11

  本文关键词： 盘查 嫌疑 刑事侦查 衔接 合理怀疑　出处：《烟台大学》2016年硕士论文　论文类型：学位论文

【摘要】：在我国刑事诉讼程序中,案件进入法院审判之前,调查取证权被置于侦查权之下,主要由国家公安机关行使,个别情形下由检察机关来行使。除了侦查权,公安机关还有一项重要的察查权力,即盘查权。公安机关的盘查权被置于《人民警察法》等行政法律法规之中,并不属于刑事诉讼法的规制范围,但其权力的启动、运行操作却又与刑事诉讼程序中侦查程序的启动以及拘传、拘留等措施密切相关。然而,由于相关立法的粗疏以及部门法之间的衔接失调,实践中这项警察权力常因实施主体混乱、程序启动随意、盘查权力滥用、强制力度过大、权力制约缺失等问题,与刑事诉讼法相关规定既交织重叠又相互冲突,往往因其可达到与刑事侦查权行使相同的取证效果而被有关机关恶意滥用,因此盘查权在立法和执法上颇受诟病。盘查与刑事诉讼程序中的拘传、讯问等刑事侦查措施分属旨趣相异的调查取证手段,既不能混同,也不能互相取代或者将盘查废除。而且,警察盘查权的设置并非我国法律所独有,无论是英美法系还是大陆法系,虽然在盘查权的性质及启动标准、盘查手段的强度上有所差异,但出于预防和打击犯罪的需要都将盘查作为一项重要权力赋予警察,同时两大法系又采取各种措施,从盘查的启动、盘查的对象、盘查的时长及范围、强度等各方面加以规制,避免公权力行使不当而侵害公民合法权益。与两大法系警察盘查制度的立法规制不同,我国的盘查权性质上属于行政职权。我国警察盘查制度与刑事侦查乃至整个刑事诉讼程序在衔接方面存在诸多立法漏洞和执法程序乱象。有鉴于此,一方面要完善行政法律法规中警察盘查制度的规定,另一方面要在刑事诉讼方面做好盘查与刑事立案、侦查程序的立法和司法衔接工作。具体言之,要针对盘查实施的法定条件、盘查对象和盘查范围、盘查尤其是继续盘查的时间限制以及盘查侵权后权利救济的路径等方面修正和完善盘查制度,并建立行政盘查与刑事侦查的合理衔接制度,进而实现盘查高效预防和打击违法犯罪的法律宗旨,有效维护社会稳定。
[Abstract]:In the criminal procedure of our country, before the case enters the court trial, the right of investigation and evidence is put under the power of investigation, which is mainly exercised by the national public security organ, and in some cases by the procuratorial organ, except for the power of investigation. Public security organs also have an important power of inspection, that is, the power of inspection. The power of public security organs is placed in the administrative laws and regulations such as the people's Police Law, and does not belong to the scope of the regulation of the Criminal procedure Law. However, the start-up of its power, the operation of the criminal procedure and the initiation of investigation procedures, detention, detention and other measures are closely related. However, due to the carelessness of the relevant legislation and the misalignment between the relevant laws. In practice, this police power is often caused by the confusion of the subject of implementation, the random start of the procedure, the abuse of the checking power, the excessive coercive power, the lack of power restriction, and so on, which are intertwined and overlapped with the relevant provisions of the Criminal procedure Law. Often because it can achieve the same effect as the exercise of criminal investigation power, it is maliciously abused by the relevant authorities. Therefore, the power of investigation is criticized in legislation and law enforcement. Interrogation and other criminal investigation measures belong to different investigative and evidentiary means. They can not be mixed, nor can they replace each other or be abolished. Moreover, the establishment of police investigation power is not unique to the law of our country. Regardless of the Anglo-American law system or the continental law system, although in the nature of the right to check and start standards, the intensity of the means of inventory is different. However, due to the need to prevent and combat crime, the police are given an important power to check. At the same time, the two legal systems also take various measures, from the start of the inventory, the object of the inventory, the time and scope of the inventory. Intensity and other aspects of regulation to avoid improper exercise of public power against the legitimate rights and interests of citizens. The nature of the power of inspection in our country belongs to the administrative authority. There are many legislative loopholes and law enforcement procedures in the connection between the police investigation system and criminal investigation and even the whole criminal procedure. On the one hand, it is necessary to perfect the provisions of the police inspection system in the administrative laws and regulations, on the other hand, to do a good job in criminal proceedings and criminal cases, investigation procedures of legislation and judicial convergence. It is necessary to amend and improve the inspection system in such aspects as the legal conditions for the implementation of the stocktaking, the object and scope of the stocktaking, the time limit for the continuous stocktaking, and the path of relief for the rights after the stocktaking. And set up the reasonable connection system between the administrative examination and the criminal investigation, and then realize the legal aim of preventing and cracking down on the illegal crime effectively, and effectively maintain the social stability.
【学位授予单位】：烟台大学
【学位级别】：硕士
【学位授予年份】：2016
【分类号】：D925.2
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本文编号：1445214