公诉案件撤诉实证研究

发布时间：2018-02-01 15:57

本文关键词： 撤回公诉控审分离司法审查权利保护　出处：《辽宁大学》2016年硕士论文　论文类型：学位论文

【摘要】：公诉撤诉行为是指检察机关向法院提起公诉后,发现公诉行为并不符合法定起诉条件,要求撤回已经起诉的法律行为。公诉撤诉是专属于检察机关的公诉权的重要组成部分,也是检察机关自我错误纠正的行为,应当肯定该项制度的合理性和必要性。本文调研A市十年公诉撤回的运行实况,发现存在如下问题：撤诉事由扩大化,有导致检察机关公诉权滥用之嫌；很多证据存在问题的案件因各种原因进入审判程序,检察机关再因证据原因撤回起诉,很容易造成对诉讼资源的浪费和对当事人诉权的侵害；撤诉提出的时间不合理,现有司法解释规定的过于宽泛,实践中检察机关随时撤诉,这样不仅有违控审分离原则,而且很容易成为检察机关规避无罪判决的工具；法院对公诉撤回的审查实际上是形式审查,使得检察机关的检察权干预了法院审判,亦不符合诉讼系属理念的要求；当事人意见得不到重视是普遍存在的现象,不利于其人权的保障；撤诉后处理程序混乱,也在一定程度上使当事人的正当权益难以保障。我国对于公诉撤回制度的立法不完善,实践中检察院、法院的操作一方面,很多问题无据可依。另一方面,为维护单位内部自身考核利益有漏洞可钻。因此,为了完善公诉撤回制度,需要从立法与实践操作两方面入手,既要有针对性地出台相对完备的法律、司法解释又要规制实践部门的现实操作。具体而言,要限定撤诉的事由并考虑与《刑法》的相关规定相结,限制存在证据问题的案件进入庭审阶段,明确撤回起诉的最后时间点应为一审辩论终结前及发回重审阶段不允许公诉撤回。撤诉效力不能简单确定为终结诉讼程序,而仅仅终结审判程序,需要通过限制检察机关再次起诉次数与条件来规制再次起诉的行为,以及规定撤诉后对被告人的强制措施变更等方法来保障当事人的合法权益,彰显我国司法机关公正、严明的司法形象。本文通过实证研究,析出公诉撤回制度在立法上与在现实操作中存在的一系列问题,根据实践与理论基础深入分析这些问题的诱因及所能造成的后果。提出相应的司法建议,希望能够对解决检察机关、法院在实践中面临的问题以及当事人权利保障问题有所助益。
[Abstract]:The action of withdrawing prosecution from public prosecution means that the prosecution does not meet the legal conditions of prosecution after the prosecution is brought to the court. The withdrawal of public prosecution is an important part of the procuratorial organ's right of prosecution, and it is also the behavior of the procuratorial organ's self-correction. We should confirm the rationality and necessity of this system. This paper investigates the operation of public prosecution withdrawal in A city for ten years, and finds that there are the following problems: the reasons for withdrawing prosecution are enlarged, which leads to the abuse of public prosecution power of procuratorial organs; Many cases with problems in evidence enter the trial procedure for various reasons, and the procuratorial organs withdraw the prosecution for the reasons of evidence, which can easily lead to the waste of litigation resources and the infringement of the litigant's right of action. The time of withdrawal is unreasonable, the existing judicial interpretation is too broad, in practice, procuratorial organs withdraw the prosecution at any time, so there is not only the principle of separation of illegal trial. Moreover, it is easy to become a tool for procuratorial organs to avoid acquittal. The examination of the withdrawal of public prosecution by the court is actually a formal review, which makes the procuratorial power of the procuratorial organ interfere with the court trial, and does not meet the requirement of the idea that the lawsuit belongs to the law; The lack of attention to the views of the parties is a widespread phenomenon, which is not conducive to the protection of their human rights; After the withdrawal of the proceedings chaos, but also to a certain extent, the legitimate rights and interests of the parties are difficult to protect. Our system of withdrawal of public prosecution legislation is not perfect, in practice, the procuratorate, the operation of the court on the one hand. On the other hand, in order to maintain the internal evaluation interests of the unit, there are loopholes to be drilled. Therefore, in order to improve the system of withdrawal of public prosecution, it is necessary to start from the aspects of legislation and practice. It is necessary to introduce relatively complete laws, judicial interpretation and regulate the practical operation of the practice department. Specifically, we should limit the reasons for withdrawing the complaint and consider the relevant provisions of the Criminal Law. Limiting cases with evidentiary problems to the trial stage. The final point of withdrawing the indictment should be that the public prosecution is not allowed to withdraw before the end of the first instance debate and at the stage of retrial. The effect of withdrawal cannot be determined simply as the termination of the proceedings, but only the conclusion of the trial procedure. It is necessary to protect the legitimate rights and interests of the parties by restricting the times and conditions of prosecution again to regulate the behavior of re-prosecution and to stipulate the change of compulsory measures against the defendant after the withdrawal of the prosecution. This paper, through empirical research, points out a series of problems in the legislation and practical operation of the withdrawal of public prosecution system. According to the practice and theoretical basis of in-depth analysis of the causes of these problems and the consequences can be caused. Put forward the corresponding judicial recommendations, hoping to solve the procuratorial organs. The problems that the court faces in practice and the protection of the rights of the parties are helpful.
【学位授予单位】：辽宁大学
【学位级别】：硕士
【学位授予年份】：2016
【分类号】：D925.2

【参考文献】