未决羁押必要性审查制度的研究

发布时间：2018-03-08 14:27

本文选题：刊事诉讼　切入点：未决羁押　出处：《安徽大学》2014年硕士论文　论文类型：学位论文

【摘要】：刑事诉讼中所说的“羁押”,通常认为是指将犯罪嫌疑人、被告人或者被判刑人关押在规定的场所,限制其人身自由,剥夺其人身权利的一项强制性措施,一般可分为未决羁押和已决羁押。未决羁押是未决羁押是指在生效判决作出之前,为保障刑事诉讼活动的顺利进行而剥夺犯罪嫌疑人、被告人人身自由,使其能在刑事诉讼过程中始终在场的一项强制措施。而在我国,未决羁押是指侦查阶段和审查起诉阶段及审判阶段,公安机关和人民检察院对犯罪嫌疑人、被告人进行拘留、逮捕后所带来的持续限制人身自由的当然状态和必然后果。它具有独立性、程序性、例外性、时限性、正当性的特征。根据上文对未决羁押的界定,未决羁押必要性审查是指有关机关比照法律规定的审查事由,对审判前犯罪嫌疑人、被告人被拘留和逮捕后所处的这种羁押状态进行进一步地审查判断,并在充分考虑平衡公共利益与嫌疑人的基本人权保障后,从而作出是否有羁押的必要的决定。它具有以下四个功能性的特性,即审查主体的中立性、启动方式的灵活性、功能上的再监督性、阶段评价性及预测性。在我国建立未决羁押必要性审查制度不仅是解决高羁押率、羁押期限不确定等现实问题的需要,就其制度本身而言,也有相当的司法价值。它不仅是防止权力滥用,降低诉讼成本、节约司法资源,增强羁押适用的正当性和可接受性的需要,也是是落实尊重和保障人权原则、贯彻宽严相济刑事政策的需要、构建和谐社会的需要。 2012年新修订的《刑事诉讼法》第九十三条在明确赋予了检察机关在捕后对羁押必要性继续审查的工作职责的同时,也明确规定了逮捕后羁押必要性查的保障机制。人民检察院颁布的《规则》也从审查主体、审查程序的启动、审查时间、审查方式、审查内容等方面做出了规定。但也存在不少问题,如审查主体不中立、审查范围的不完整启动方式不合理、审查决定的效力不足等。为使该制度能够充分发挥其作用,更有利于司法实践的操作,通过立法或者司法解释其其细化势在必行。审查机关应由专门的侦查监督部门担任；审查的内容还应包括刑事拘留后羁押的必要性、逮捕本身的必要性,且涉及侦查、审查起诉和审判的每个诉讼环节；关于审查的期限,可以根据案件的需要大体分为即时审查和定期审查,具体的审查方式可以书面审查为主,必要时可以提审讯问犯罪嫌疑人等复合的审查方式,对于特殊重大案件和存在争议的案件,可以采取听证的方式进行。
[Abstract]:The term "detention" as mentioned in criminal proceedings is generally regarded as a coercive measure to hold a criminal suspect, accused or sentenced person in a prescribed place, to restrict his personal freedom and to deprive him of his personal rights. In general, it can be divided into pending detention and determined custody. Pending detention is the deprivation of the criminal suspect and the accused person's liberty in order to ensure the smooth progress of criminal proceedings before the effective judgment is issued. In our country, pending detention refers to the stage of investigation, examination and prosecution and the stage of trial, in which the public security organ and the people's procuratorate detain the criminal suspect and the accused. It has the characteristics of independence, procedure, exception, time limit and legitimacy. According to the above definition of pending detention, the examination of the necessity of pending detention refers to the examination of criminal suspects prior to trial by the relevant organs, mutatis mutandis to the reasons prescribed by the law. The state of detention in which the accused has been detained and arrested to conduct a further review and determination, taking fully into account the balance between the public interest and the basic human rights guarantees of the suspect, It has the following four functional characteristics: the neutrality of the subject, the flexibility of the starting mode, the re-supervision of the function, the evaluation of the stage and the predictability. Establishing the system of examining the necessity of pending custody in our country is not only the need to solve the practical problems such as high detention rate and indefinite detention duration, but also has considerable judicial value in terms of its system itself. It is not only to prevent abuse of power, but also to prevent abuse of power. It is also the need to implement the principle of respecting and protecting human rights, to carry out the criminal policy of combining leniency and severe punishment, and to construct a harmonious society by reducing the cost of litigation, saving judicial resources, and enhancing the legitimacy and acceptability of the application of custody. Article 93th of the Criminal procedure Law, which was revised in 2012, clearly gives the procuratorial organ the duty to continue to examine the necessity of custody after arrest. The rules promulgated by the people's Procuratorate also include the subject of the review, the initiation of the review procedure, the time of the examination, and the way of the examination. However, there are still many problems, such as the non-neutrality of the subject, the unreasonable way of the incomplete starting of the scope of the review, the insufficient effectiveness of the review decision, etc. In order to make the system fully play its role, More conducive to the operation of judicial practice, through legislation or judicial interpretation of its refinement is imperative. The examination organ should be served by a special investigation and supervision department; the content of the examination should also include the necessity of detention after criminal detention, the necessity of arrest itself, and involve the investigation, the examination of each procedure link of prosecution and trial; With regard to the duration of the examination, according to the needs of the case, it can be broadly divided into immediate review and periodic review. Specific examination methods can be mainly reviewed in writing, and compound examination methods such as interrogation of criminal suspects can be arraigned if necessary. Special major cases and controversial cases may be conducted by way of hearing.
【学位授予单位】：安徽大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D925.2

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