附条件不起诉制度比较与我国的制度完善

发布时间：2018-07-07 15:46

本文选题：附条件不起诉 + 检察机关　；参考：《河北大学》2014年硕士论文

【摘要】：近几年,我国未成年人犯罪率呈现出逐年上升的趋势,并且随着时代发展,未成年人犯罪出现了低龄化、团伙化、暴力化倾向,如何有效预防未成年人犯罪受到社会各界的广泛关注,加强对未成年人的司法保护,积极探索对未成年人犯罪实行非刑事化处理,重视对未成年人适用预防和矫治措施,已成为未成年人司法制度的发展方向。目前国际上流行的裁量不起诉制度就比较适用于解决这一问题,裁量不起诉制度在德国、美国日本以及我国台湾、澳门等地区都已运行多年,有较为成熟的经验,结合我国的基本国情,附条件不起诉制度就应运而生。附条件不起诉作为轻罪非罪化处理的一种起诉替代措施,在有效化解刑事纠纷、预防和矫治犯罪方面能发挥较好作用。在此背景下,新刑事诉讼法增加了未成年人犯罪适用附条件不起诉制度,该制度符合诉讼经济原则,有利于未成年人重新回归社会,但是在实践中,附条件不起诉制度存在适用范围较窄、帮教考察机制不完善、救济制度不完善等问题。本文对附条件不起诉制度的定义、适用范围和条件、考验期内考察帮教、救济和制约机制等相关问题与域外国家相关制度进行了比较分析,并提出改进建议,以期对我国附条件不起诉制度的进一步完善有所裨益。我国的附条件不起诉制度的适用范围和条件相比较其他国家和地区较为严苛,仅适用于未成年人而且还需要具备很多条件;附条件不起诉考验期内考察帮教机制存在缺陷,根据刑诉法规定,人民检察院对被附条件不起诉的嫌疑人进行监督考察,即由检察机关直接实施帮教考察。笔者认为,检察机关作为法律监督机关,应当对考察帮教活动实施监督,而不是直接对嫌疑人实施帮教考察。因为作出附条件不起诉决定的是检察机关,实施帮教考察的是检察机关,考验期满根据考察结果作出决定是否起诉的还是检察关。检察机关既当运动员又当裁判员,难免会影响司法的中立性。同时,检察机关不是专门的帮教机构,人力、物力、财力有限,难免使帮教考察流于形式,影响帮教效果;附条件不起诉作为检察机关的自由裁量权之一,如果没有建立相应的权力制约机制,就可能带来起诉裁量权的滥用,容易导致司法不公和司法腐败,特别是附条件不起诉制度这样一项还不成熟的新生事物,更需要有效的监督制约来加以规范。鉴于附条件不起诉制度存在以上不足,本文通过对比域外国家相关法律规定和普遍做法的基础上,提出适当放宽附条件不起诉适用范围和条件、建立社会化考察帮教模式和提倡对附条件不起诉机制加强执法监督,防止自由裁量权滥用等意见和建议,以促进该项机制的发展完善。
[Abstract]:In recent years, the crime rate of minors in our country has been increasing year by year, and with the development of the times, juvenile delinquency has appeared the tendency of younger age, gang and violence. How to effectively prevent juvenile delinquency has received extensive attention from all walks of life in society, strengthen the judicial protection of minors, actively explore the decriminalization of juvenile delinquency, and attach importance to the application of preventive and corrective measures to minors. It has become the development direction of juvenile justice system. At present, the international system of discretion and non-prosecution is more suitable for solving this problem. The system of discretionary non-prosecution has been in operation in Germany, the United States and Japan, as well as in Taiwan, Macao and other regions of China for many years, and has relatively mature experience. Combined with our country's basic national conditions, conditional non-prosecution system emerged as the times require. Conditional non-prosecution, as an alternative to prosecution in the decriminalization of misdemeanours, can play a better role in effectively resolving criminal disputes and preventing and rectifying crimes. In this context, the new Code of Criminal procedure adds the system of non-prosecution with conditions applicable to juvenile delinquency, which conforms to the principle of litigation economy and is conducive to the return of minors to society, but in practice, The system of conditional non-prosecution has some problems, such as narrow scope of application, imperfect investigation mechanism of help and education, imperfect relief system and so on. This paper makes a comparative analysis of the definition, applicable scope and conditions of the conditional non-prosecution system, the inspection of help and education, the relief and restriction mechanism during the test period, and puts forward some suggestions for improvement. With a view to our conditional non-prosecution system to further improve the benefit. Compared with other countries and regions, the scope of application and conditions of conditional non-prosecution system in our country are more stringent, only applicable to minors and also need to have a lot of conditions. According to the provisions of the Criminal procedure Law, the people's Procuratorate supervises and inspects the suspects who are not prosecuted under the attached conditions, that is, the procuratorial organs directly carry out the investigation of assistance and education. The author believes that the procuratorial organ, as a legal supervision organ, should supervise the investigation of help and education, not the suspect directly. Because it is the procuratorial organ that makes the decision not to prosecute under conditions, and the procuratorial organ that carries out the inspection of help and education, and it is the procuratorial organ that decides whether to prosecute according to the result of the inspection at the expiration of the test period. The procuratorial organ is both an athlete and a umpire, which inevitably affects the neutrality of the judiciary. At the same time, the procuratorial organ is not a special organization for helping and educating, its manpower, material resources, and financial resources are limited, so it is inevitable that the inspection of help and education is mere formality, which affects the effect of helping and educating; conditional non-prosecution is one of the discretionary powers of the procuratorial organs. If the corresponding power restriction mechanism is not established, it may lead to the abuse of the discretion of prosecution, which will easily lead to judicial injustice and judicial corruption, especially a new thing, such as conditional non-prosecution system, which is still immature. More need for effective supervision and control to regulate. In view of the above deficiencies in the system of conditional non-prosecution, this paper, based on the comparison of the relevant laws and regulations of foreign countries and the general practice, suggests that the scope and conditions of application of conditional non-prosecution should be appropriately relaxed. In order to promote the development and perfection of this mechanism, we should set up a socialized mode of investigation, help and educate, advocate the mechanism of non-prosecution with conditions, strengthen the supervision of law enforcement and prevent the abuse of discretion.
【学位授予单位】：河北大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D925.2

【参考文献】