论控辩平衡视角下的庭审实质化

发布时间：2018-07-07 22:57

本文选题：控辩平衡 + 庭审实质化　；参考：《安徽大学》2016年硕士论文

【摘要】：庭审实质化是我国今后刑事司法改革的方向和目标,控辩平衡则是庭审实质化的保障。没有控辩两造的平等对抗与互相制衡,审判机关无法及时认定证据,无法查清案件事实,不能将庭审变成为刑事司法程序的中心。文章从控辩平衡视角下研究庭审实质化问题,意在强调二者互相促进的密切关系。文章首先是控辩平衡视角下的庭审实质化的理论基础,在分析了相关概念基本的含义后认为,控辩平衡下的庭审实质化需要国家与个人地位的平等、刑事诉讼合意制度的指导。刑事诉讼合意制度是将契约、意思表示等概念引入刑事诉讼领域。诉讼合意的前提是控辩双方的平等,双方在平等的基础上通过谈判达成合意。紧接着文章重点探讨了控辩平衡视角下的庭审实质化中存在的主要问题及其成因,认为控辩平衡视角下的庭审实质化中存在的主要问题是,庭审方式的卷宗中心主义,从控辩平衡的角度,卷宗材料由侦查机关和公诉机关制作,被告方及其辩护人无法参与制定程序中,甚至连了解事实阅卷了解卷宗材料内容的机会都没有。庭前会议的变异和庭下、庭外活动的常态化,庭前会议却发生了变形,出现了很多问题,影响了庭审的实质化,更加无法保证在庭前会议中保证控辩的平衡。庭前会议的最大问题是实体化趋势,架空了庭审程序,许多本不该由庭前会议决定的问题也涌入庭前会议,由庭前会议来处理。庭审内容的选择,庭外裁判的盛行。造成这些问题的主要原因是侦查中心主义影响到庭审和司法活动的行政化。最后文章研究了控辩平衡视角下庭审实质化的实现路径,具体来说,平等武装的基本要求是立法中对控方与辩方权利设定必须对等平衡,这就要求刑事诉讼法赋予检察院和被告人对等的诉讼权利和义务,以使控辩双方能够真正平等、有效地参与诉讼,促进纠纷的解决。庭审方式上直接言词原则的切实确立,要求法官直接审查所有证据,所有证据经法官直接调查,才能作为判决的依据。变更卷宗的法律定位,明确规定庭审之前卷宗材料中的各类材料,包括证人证言、被害人陈述、被告供述等都还只是证据原料,并不必然具有证据能力,必须要经过庭审质证和审查后才能决定是否具有证明效力和证据能力。完善鉴定人员、证人出庭制度。庭前会议的完善从发起主体来看,为了保证控辩平衡,应该赋予控辩双方都有庭前会议发起权利。从主持人角度,应考虑将庭前会议主持人与合议庭成员区分开。强化辩护人在庭审会议中作用。完善庭前会议效力规定。确保当庭裁判,强化合议庭独立性,减少庭长、院长和审委会对合议庭独立审理、判断的不当干越。提高当庭裁判效果是司法改革的目标之一。充实庭审调查,促进举证,完善庭审调查程序,强化辩方的质证权。
[Abstract]:The materialization of trial is the direction and goal of our country's criminal judicial reform in the future, and the balance of prosecution and defense is the guarantee of the materialization of trial. Without the equal confrontation and checks and balances between the two sides, the judicial organs could not identify the evidence in time, find out the facts of the case, and turn the trial into the center of the criminal justice process. From the angle of the balance of prosecution and defense, this paper studies the materialization of the trial and emphasizes the close relationship between the two. Firstly, the article is the theoretical basis of the trial materialization from the angle of the balance of prosecution and defense. After analyzing the basic meaning of the relevant concepts, the author thinks that the essence of the trial under the balance of prosecution and defense needs the equality of the state and the individual status, and the guidance of the consensus system of the criminal procedure. The system of agreement in criminal procedure is to introduce the concepts of contract and expression of will into the field of criminal procedure. The premise of litigation agreement is the equality of prosecution and defense, and the two sides reach agreement through negotiation on the basis of equality. Then the article discusses the main problems and their causes of the trial in the perspective of the balance of prosecution and defense, and thinks that the main problem in the substantive trial is the file centralism of the trial mode. From the point of view of the balance of prosecution and prosecution, the file materials are produced by the investigating and public prosecution organs, and the defense and their defenders cannot participate in the formulation of the procedure, or even the opportunity to read the facts and understand the contents of the file materials. The variation of the pre-court meeting and the normalization of the out-of-court activities, however, the pre-court meeting has been deformed and many problems have appeared, which have affected the substance of the trial, and can not guarantee the balance of the prosecution and defense in the pre-court meeting. The biggest problem of the pre-court meeting is the trend of materialization, which sets up the trial procedure, and many problems which should not be decided by the pre-court meeting also rush into the pre-court meeting to be dealt with by the pre-court meeting. The choice of the content of the trial, the prevalence of out-of-court adjudication. The main reason for these problems is that investigative centralism affects the administration of trial and judicial activities. Finally, the article studies the realization path of the trial materialization from the angle of the balance of prosecution and defense. Specifically, the basic requirement of equal armed forces is that the right of the prosecution and the defense must be equitably balanced in the legislation. This requires that the criminal procedure law endow the procuratorate and the defendant with the equal rights and duties of litigation, so that the prosecution and defense can participate in the lawsuit equally and effectively, and promote the settlement of disputes. The establishment of the principle of direct speech in the trial mode requires the judge to examine all the evidence directly and all the evidence can be taken as the basis of the judgment only after the judge directly investigates the evidence. Changing the legal position of the file and clearly stipulating that all kinds of materials in the file before the trial, including the testimony of the witness, the statement of the victim, the statement of the defendant, etc., are only the raw materials of evidence and do not necessarily have the evidentiary capacity. Only after trial cross-examination and examination can we decide whether we have the validity and the ability of evidence. Perfect appraisal personnel, witness appear in court system. In order to ensure the balance of prosecution and defense, both the prosecution and the defense should be given the right to initiate the pre-court meeting. From the point of view of the moderator, consideration should be given to the distinction between the presiding officer and the collegiate panel member. Strengthen the role of the defender in the trial meeting. To perfect the provisions on the validity of the pre-court meeting. To ensure the decision in court, strengthen the independence of the collegiate panel, and reduce the improper judgment of the chairman, the president and the jury. One of the aims of judicial reform is to improve the effect of adjudication in court. Enrich the trial investigation, promote the evidence, perfect the trial investigation procedure and strengthen the defense's right of cross-examination.
【学位授予单位】：安徽大学
【学位级别】：硕士
【学位授予年份】：2016
【分类号】：D925.2

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