论我国逮捕羁押制度的重构

发布时间：2018-05-20 01:27

本文选题：逮捕羁押 + 捕押合一　；参考：《安徽大学》2014年硕士论文

【摘要】：纵观世界各地的法律制度,主要存在着两种逮捕押制度模式,一种是逮捕与押分离的制度模式,这种模式以西方国家为代表；一是逮捕和羁押合一的模式,以我国最为典型。两种制度模式不论是在概念上还是内涵上,亦或是审批程序、具体适用对象上都有着极大的差异。在西方国家法律规定中,逮捕只是强制嫌疑人到案的手段,一般不超过48小时,而羁押才是长期剥夺嫌疑人人身自由的措施,两者是互不隶属,相互独立的两项强制措施。但在我国刑事诉讼中,羁押是拘留与逮捕的当然结果,只要有拘留或逮捕,必然引起羁押。而且,我国的未决羁押与刑事拘留、逮捕无论在适用程序还是在适用条件上,均未发生分离,两者是合二为一的。可见我国是逮捕羁押合一的制度模式。即我国没有一个独立的、可称其为“羁押”的强制措施,而仅仅是拘留、逮捕后引发的当然结果,是逮捕和拘留这两项强制措施的组成内容。根据我国法律规定,可以得出,逮捕和拘留构成了未决羁押的全部内容。在司法实践中,大量超期羁押和刑讯逼供的现象都处于这个阶段,可以看出,逮捕羁押制度是否合理直接关系到人权保障问题。而这些问题的出现也暴露出了逮捕羁押合一制度模式的弊端。通过两种制度模式的比较,在借鉴、参考西方国家逮捕羁押制度的基础上提出在中国构建与中国国情相适应的逮捕与羁押分离制度,在此基础上,构建结构严谨,内容合理的逮捕羁押适用条件、审查方式、审查程序和救济途径。
[Abstract]:Throughout the world, there are two kinds of arrest and custody system models, one is the separation of arrest and custody, which is represented by western countries, the other is the integration of arrest and custody, which is the most typical in our country. There are great differences between the two models in concept and connotation, as well as in the examination and approval procedure. In the western countries, arrest is only the means to force the suspect to the case, usually not more than 48 hours, and detention is the measure of depriving the suspect of his or her personal liberty for a long time. The two measures are not subordinate to each other and independent of each other. But in our country, custody is the natural result of detention and arrest, so long as there is detention or arrest, it will inevitably lead to custody. Moreover, there is no separation between the pending detention and the criminal detention in our country, neither in the applicable procedure nor in the applicable conditions, but the two are combined. We can see that our country is the system model of arrest and custody. That is, our country does not have an independent coercive measure, which can be called "detention", but only detention. The natural result of arrest is the content of the two coercive measures: arrest and detention. According to the law of our country, it can be concluded that arrest and detention constitute the whole content of pending detention. In judicial practice, a large number of cases of prolonged detention and extortion of confessions by torture are at this stage. It can be seen that whether the system of arrest and detention is reasonable or not is directly related to the protection of human rights. The emergence of these problems also exposed the malpractice of the system of arrest and custody. Based on the comparison of the two systems, and referring to the arrest and detention system in western countries, this paper proposes to construct a separate arrest and detention system in China, which is suited to China's national conditions, and on this basis, to construct a rigorous structure. Reasonable conditions of arrest and detention, review method, review procedure and remedy.
【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

【参考文献】