论我国腐败案件污点证人制度之构建

发布时间：2018-06-01 03:12

本文选题：腐败案件 + 污点证人　；参考：《湘潭大学》2017年硕士论文

【摘要】：我国对于腐败犯罪一直采取高压打击的态度,十八大以来反腐败力度更是空前,不但处理了大量“苍蝇型”腐败犯罪者,还查办了一大批有影响的“老虎型”贪腐高官。可腐败犯罪十分特殊且复杂,司法实践也因此遇到了很多困难。司法实务者为了推动个案的顺利进展,不断发挥着各自的聪明才智,创造性地采用了一些法外措施,以化解查办腐败犯罪中的种种难关,其中既有刑讯逼供、借用纪委双规等做法,也有争取污点证人合作的方式。污点证人在重大疑难腐败案件中起到了极其重要的作用,可却长期无法可依,处于地下运行状态。对此学界却迟迟没有给予足够地重视,现有研究成果主要是对域外污点证人制度和经验进行介绍和评述,缺少对我国司法实践中腐败案件污点证人的实证研究。总结分析我国司法实践中腐败案件污点证人的现状,可以发现我国腐败案件污点证人呈现以下四个基本特征:第一、性质上:多为重大疑难复杂案件;第二、程序上:多在立案前或侦查阶段;第三、主体上:多选从犯或行贿犯罪者;第四、处置上:多得到司法机关“对价”。我国腐败案件污点证人能够在司法实践中产生并不断发展,根本原因是其能缓和刑诉法内在矛盾,直接原因是其能证实犯罪,当然也有赖于法律空间、刑事诉讼理论创新和域外经验所提供地支持。任何熟悉司法实务的人士都清楚,对污点证人的运用具有发现腐败犯罪线索、提供腐败犯罪证据和瓦解主犯心理防线的作用。但司法实践中的腐败案件污点证人也存在法律缺位和监督缺失等问题。为了平衡保障人权与惩罚犯罪、公平正义与效率成本以及腐败特点和侦查能力之间的矛盾,我国确有必要构建一套适应我国国情的腐败案件污点证人制度。而且建立一套我国腐败案件污点证人制度,在理论、立法和司法上都是可行的。我国腐败案件污点证人制度,作为一项直接影响刑罚权实现程度的刑事诉讼程序,使污点证人的诉讼地位和权利、义务都发生了一系列的改变,所以必须通过比例原则、司法授权原则和证据补强原则对其进行限制,同时还要严格控制我国腐败案件污点证人制度的适用范围、豁免类型和适用程序,保证污点证人制度能够在法治范围内运行。
[Abstract]:Since the 18th National Congress of the CPC, our country has always adopted a high-pressure attitude against corruption, which has not only dealt with a large number of "fly type" corruption offenders, but also investigated and dealt with a large number of influential "tiger type" corrupt officials. But the corruption crime is very special and complex, the judicial practice has therefore encountered many difficulties. In order to promote the smooth progress of the case, the judicial practitioners have continuously brought their intelligence into full play and creatively adopted some extra-legal measures to resolve the difficulties in the investigation of corruption crimes, including extorting confessions by torture. Borrowing from the discipline Inspection Commission double rules and other practices, there is also a way to seek the cooperation of tainted witnesses. The tainted witness plays an extremely important role in the serious and difficult corruption cases, but it can not be relied on for a long time. However, the academic circles have not paid enough attention to this problem. The existing research results mainly introduce and comment on the system and experience of foreign tainted witnesses, and lack of empirical research on the tainted witnesses of corruption cases in the judicial practice of our country. By summing up and analyzing the present situation of the tainted witness in our country's judicial practice, we can find that the tainted witness of the corruption case in our country presents the following four basic characteristics: first, the nature: most of them are important and difficult and complicated cases; second, Procedure: mostly in the stage of investigation or before filing; third, the main body: the multiple selection of accomplices or bribery offenders; fourth, disposition: more judicial "consideration". The tainted witness of corruption cases in our country can produce and develop continuously in the judicial practice, the fundamental reason is that it can alleviate the inherent contradiction of the criminal procedure law, the direct reason is that it can prove the crime, of course, it also depends on the legal space. The innovation of criminal procedure theory and the support of foreign experience. Anyone familiar with judicial practice knows that the use of tainted witnesses has the function of finding clues to corruption crimes, providing evidence of corruption crimes and disintegrating the psychological defense lines of the principal offenders. However, in judicial practice, tainted witnesses in corruption cases also have problems such as lack of law and lack of supervision. In order to balance the contradiction between the protection of human rights and the punishment of crime, the cost of fairness, justice and efficiency, the characteristics of corruption and the ability of investigation, it is necessary to construct a system of tainted witnesses in corruption cases. Moreover, it is feasible in theory, legislation and judicature to establish a system of tainted witness in corruption cases in our country. The system of tainted witness in corruption cases in our country, as a criminal procedure that directly affects the degree of realization of penalty right, has made a series of changes in the litigation status and rights and obligations of tainted witnesses, so the principle of proportionality must be adopted. The principle of judicial authorization and the principle of corroboration of evidence restrict it. At the same time, we must strictly control the scope of application, the type of exemption and the applicable procedure of the system of tainted witnesses in corruption cases in our country, so as to ensure that the system of tainted witnesses can operate within the scope of the rule of law.
【学位授予单位】：湘潭大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D925.2

【参考文献】