论我国刑事证人出庭作证制度的现状及完善途径

发布时间：2018-06-14 17:12

本文选题：证人出庭作证 + 证人保护　；参考：《南京大学》2014年硕士论文

【摘要】：在我国刑事诉讼法体系中,证人出庭作证制度是证据法的重要组成部分,要求证人出庭作证成为很多国家的选择,更是对当下我国审判实践的客观要求。目前证人保护制度在域外的许多国家早已被条文化、规范化,在强调刑事证人出庭作证是现代公民的责任的同时,国家对于证人利益的保护工作也不能忽视。1996年《刑事诉讼法》作出了庭审方式向“控辩式”转变的重大改革,即要求由控辩双方各自提供主张和证据,中立的法官和陪审员则根据双方的证据和主张来认定案件事实和适用法律。要求证人出庭接受控辩双方质询,是对抗式庭审的必然要求。然而由于法律法规不健全、社会和证人自身等多方面的原因,目前刑事证人出庭率偏低,证人不敢更不愿出庭已成为我国刑事审判活动的一大隐忧。证人不愿出庭作证不仅打破了控辩双方之间应有的力量平衡,更可能践踏被告方的合法权益,使其得不到公正的判决。故此,笔者认为有必要对我国刑事证人出庭作证制度的构建和完善作一些比较全面、深入的思考,从立法、司法和社会等方面分析产生当前存在的某些问题的原因,并提出自己对如何完善证人出庭作证制度的一些粗浅看法。本文主要分为四个部分。第一部分基本概念和证人出庭作证的价值理论的阐述。证人可以到庭接受控辩双方的质询,有助于法官直观判断,进行全面的分析,对案件事实准确判定,从而作出公正的判决。这不但是直接言词的要求,更有利于维护我国被告人的合法权利,提高我国的诉讼效率,推动我国庭审模式的逐步完善。第二部分从2013年新《刑事诉讼法》的适用为背景来分析我国刑事证人出庭作证率长期较低的现状及其原因。我国刑事证人出庭率极低,其严重阻碍了法院庭审方式的革新。因而,解决证人出庭作证难的困境刻不容缓。要解决这一问题,就必然要分析问题产生的原因,从法律法规尚不健全、司法机关忽视和中国传统“厌讼”思想的影响三个方面进行了详细的论证。第三部分通过比较分析普通法系和大陆法系国家的刑事证人出庭作证制度,介绍了其证人出庭作证制度的特色规范,包括证人出庭作证的资格、强制证人到庭及其拒绝出庭的后果、对证人出庭作证的经济补偿、对证人人身安全保护的政策和污点证人作证豁免制度五个方面,接着得出可以为我国法律的借鉴之处。第四部分是笔者通过总结问题和分析域外国家法的经验,从而提出对构建和完善当前我国刑事证人出庭作证制度的一些看法。我国刑事证人出庭率低,笔者认为关键就在于我国对证人出庭作证的相关法律工作不到位和予以支撑的制度保障力度不够。为有效解决这一问题,笔者认为应当从立法和司法方面进行分析。首先是立法层面的完善,主要详细介绍了关键证人的对象和范围,以及强制证人出庭的意义和价值。其次是证人保护措施的介绍,在现有法律规定的基础上进行完善。接着是经济补偿制度的规范和细化,主要是实际的操作流程。此外就是借鉴普通法国家的污点证人的作证制度,试论在我国构建此制度的可能性。要改善我国证人出庭作证率低的现状,应将着力点放在完善刑事证人出庭作证制度上。因此,笔者认为,在新《刑事诉讼法》的落实中,通过司法机关出台司法解释的方式让我国的证人出庭作证制度的相关规范得到完整地落实,改善长期以来的证人出庭率低的境况。
[Abstract]:In the system of criminal procedure law of China, the system of witness appearing in court is an important part of the evidence law. It requires the witness to testify in court as the choice of many countries, and it is the objective requirement of the trial practice of our country. At present, the witness protection system has been cultured and standardized in many foreign countries, emphasizing the appearance of the witness in court. It is the responsibility of the modern citizen to testify, and the protection of the interests of the witness can not be neglected by the state in the protection of the interests of the witness in.1996. The reform of the way of trial to the "accusation and defense" is made by the criminal procedure law. That is to say, the two parties should provide their own opinions and evidence, and the judges and jurors who are neutral are recognized according to the evidence and claims of both parties. The fact and applicable law of the case are required. It is an inevitable requirement for the confrontation court to ask the witness to be questioned by the accusation and defense. However, because of the unsound laws and regulations, and the many reasons such as the society and the witness itself, the rate of witness appearing in court is low at present, and the witness is not afraid to appear in court and has become a major concern for the criminal trial activities of our country. The reluctance of a person to testify not only breaks the balance of power between the two parties, but also trampling the legitimate rights and interests of the accused, so that it can not get a fair judgment. Therefore, I think it is necessary to make some more comprehensive and thorough thinking on the construction and perfection of the system of witness testimony in our country, from legislation, judicature and society. This paper analyzes the reasons for the existing problems and puts forward some superficial views on how to improve the system of witness appearing in court. This article is divided into four parts. The first part is the basic concept and the value theory of witness appearing in court. The witness can answer the questions from the controlled plea and help the judge to be intuitionistic. To judge, make a comprehensive analysis, make a accurate judgment of the facts of the case, and make a fair judgment. This is not only the requirement of direct words, but also more conducive to maintaining the legal rights of the accused in our country, improving the efficiency of our country's litigation, and promoting the gradual perfection of the mode of trial in our country. The second part is from the background of the application of the new "Criminal Procedure Law" in 2013. The present situation and the reasons for the low rate of testimony in court in our country are analyzed. The rate of witness appearing in court is very low in our country, which has seriously hindered the reform of court trial. Therefore, it is urgent to solve the difficult dilemma of witness appearing in court. The three aspects of the neglect of the judicial organs and the influence of the Chinese traditional "weariness of litigation" were discussed in detail. The third part, by comparing and analyzing the system of witness appearing in court in the common law and civil law countries, introduced the characteristics of the system of witness appearing in court, including the qualifications of witnesses to testify in court and compulsory witnesses to appear in court. And the consequences of his refusal to appear in court, the economic compensation for witnesses to testify in court, the five aspects of the policy of witness safety protection and the exemption system of witness testimony, and then to draw lessons that can be used for reference in the law of our country. The fourth part is the author's construction and improvement by summarizing the problems and analyzing the experience of the foreign domestic law in the domain. At present, there are some views on the system of witness appearing in court in our country. The rate of criminal witness in our country is low. The key is that the legal work of witness appearing in court in our country is not enough and the system support is not enough. In order to solve this problem effectively, the author thinks that it should be analyzed from the legislative and judicial aspects. The first is the perfection of the legislative level, which mainly introduces the object and scope of the key witnesses, and the significance and value of the compulsory witness appearing in court. Secondly, the introduction of the witness protection measures is introduced on the basis of the existing laws. Then, the standardization and refinement of the economic compensation system, mainly the actual operation process. In order to improve the present situation of the low rate of witness appearing in court in our country, we should focus on improving the system of witness appearing in court in the criminal court. Therefore, the author believes that in the implementation of the new law of criminal procedure, judicial interpretations are issued by the judiciary. The way to make the relevant norms of the system of witness appearing in court in China has been fully implemented, and the situation of low attendance of witnesses has been improved for a long time.
【学位授予单位】：南京大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D925.2

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