行政诉讼非法证据认定标准的实证研究
发布时间：2018-07-28 16:46
【摘要】：诉讼的关键在于证据。在诉讼过程中，对于证据合法性的认定是司法机关审查的重点之一。在行政领域，行政机关的权力已经延伸到公民生活的各个方面，如果不对行政机关的执法权进行一定的约束，公民的合法权益必然受到更大的侵犯。因此，在行政诉讼中明确非法证据排除规则及其认定标准，从而规范行政机关的取证行为是十分必要的，这不仅能提高行政主体的执法水平和效率，对于我国法治进程的推进也具有积极的作用。 然而，在行政诉讼领域对于非法证据的认定并不是一件容易的事，学者对于行政非法证据认定的范围存在着广义说和狭义说之分，并且对于非法证据排除的范围也存在着绝对排除和有选择的排除之争。同时司法机关在对行政证据进行审查时也遇到一系列的问题，如我国行政立法对证据排除规则规定的缺失、行政机关执法过程中所拥有的自由裁量权等，这些问题造成了我国行政领域内非法证据认定的困境。因此，，本文的写作目的主要是选取比较有争议点的三个行政案例，通过实际的案例深入分析我国司法机关在行政诉讼中如何对行政非法证据进行认定并排除。 本文分为三个部分对行政领域内的非法证据认定进行分析和研究。第一部分从行政诉讼领域内的非法证据排除规则的基本理论着手，阐述非法证据排除的理论基础，并且在对我国行政领域关于非法证据排除的相关立法规定进行列举和评析后，以此为基础引出本文后面部分所要论述的问题。第二部分仔细分析所选取的三个典型案例的相关案情和司法机关在判决书中对证据的认定和排除所给出的理由，以此来阐述我国司法机关在行政诉讼领域如何对非法证据进行认定和审查。第一个案例从行政机关的取证程序和行政证据的合法形式方面入手，第二个案例主要从行政机关的诱惑及暴力取证方式入手，第三个案例从取证主体的适格性方面和行政机关的秘密取证手段方面入手，通过三个案例的这六个方面，对我国司法实践中对行政非法证据进行排除的实施和对非法证据排除规则的适用进行详细的论述。第三部分从我国立法、执法和司法审查等方面提出当前我国非法证据排除规则在行政诉讼中适用的困境。首先在立法上，我国缺少统一的、规范的《行政程序法》，而目前存有的法律和司法解释对证据排除规定不明确，用词语义模糊，因此也导致了行政非法证据排除的困境；其次，我国公民的法律意识不强，执法机关依法行政的意识不高，司法机关的体制不健全等一系列因素也导致了行政非法证据排除规则在实践中适用的难度。通过上述的反思和建议，笔者以期促进行政机关依法行政和执法水平的提高，推动我国非法证据排除规则的发展和完善。
[Abstract]:The key to litigation is evidence. In the process of litigation, the recognition of the legality of evidence is one of the emphases of judicial examination. In the administrative field, the power of the administrative organ has been extended to every aspect of the citizen's life. If the law enforcement power of the administrative organ is not restricted to a certain extent, the legitimate rights and interests of the citizen will inevitably be infringed upon. Therefore, it is necessary to make clear the rules of exclusion of illegal evidence and its identification standards in administrative litigation, so as to standardize the evidence collection behavior of administrative organs, which can not only improve the level and efficiency of law enforcement of administrative subjects, It also plays a positive role in promoting the process of rule of law in our country. However, in the field of administrative litigation, it is not easy to identify illegal evidence. Scholars have broad sense and narrow sense about the scope of administrative illegal evidence. And the scope of exclusion of illegal evidence also exists absolute exclusion and selective exclusion. At the same time, when the judicial organs examine the administrative evidence, they also encounter a series of problems, such as the absence of the rules governing the exclusion of evidence in the administrative legislation of our country, the discretionary power of the administrative organs in the process of enforcing the law, and so on. These problems have caused the dilemma of illegal evidence identification in the administrative field of our country. Therefore, the purpose of this paper is to select three administrative cases with more controversial points, and to analyze how the judicial organs of our country identify and exclude the illegal administrative evidence in the administrative proceedings through the actual cases. This paper is divided into three parts to analyze and study illegal evidence in administrative field. The first part begins with the basic theory of the exclusion rules of illegal evidence in the field of administrative litigation, expounds the theoretical basis of the exclusion of illegal evidence, and after enumerating and evaluating the relevant legislative provisions on the exclusion of illegal evidence in the administrative field of our country, Based on this, it leads to the problems to be discussed in the later part of this paper. In the second part, we carefully analyze the relevant facts of the three typical cases selected and the reasons given by the judicial organs for the determination and exclusion of the evidence in the judgment. In order to explain how the judicial organs in the field of administrative proceedings to identify and review illegal evidence. The first case starts with the procedure of obtaining evidence and the legal form of administrative evidence. The second case mainly starts with the temptation of the administrative organ and the method of obtaining evidence by violence. The third case starts from the aspects of the appropriateness of the subject of evidence and the secret means of obtaining evidence from the administrative organs, through these six aspects of the three cases, This paper discusses in detail the enforcement of the exclusion of the administrative illegal evidence and the application of the rule of the exclusion of the illegal evidence in the judicial practice of our country. The third part puts forward the dilemma of applying illegal evidence exclusion rules in administrative litigation from the aspects of legislation, law enforcement and judicial review. First of all, in legislation, our country lacks a unified and standardized "Administrative procedure Law", and the existing legal and judicial interpretations have unclear provisions on the exclusion of evidence and vague semantic terms, which also lead to the dilemma of the exclusion of administrative illegal evidence. A series of factors, such as weak legal consciousness of Chinese citizens, low awareness of law enforcement agencies' administration according to law, imperfect system of judicial organs, etc., also lead to the difficulty of applying the rule of exclusion of administrative illegal evidence in practice. Through the above reflection and suggestions, the author hopes to promote the administrative organs to improve the level of administration according to law and law enforcement, and to promote the development and improvement of the rule of exclusion of illegal evidence in our country.
【学位授予单位】：华东政法大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D925.3
本文编号：2150927
[Abstract]:The key to litigation is evidence. In the process of litigation, the recognition of the legality of evidence is one of the emphases of judicial examination. In the administrative field, the power of the administrative organ has been extended to every aspect of the citizen's life. If the law enforcement power of the administrative organ is not restricted to a certain extent, the legitimate rights and interests of the citizen will inevitably be infringed upon. Therefore, it is necessary to make clear the rules of exclusion of illegal evidence and its identification standards in administrative litigation, so as to standardize the evidence collection behavior of administrative organs, which can not only improve the level and efficiency of law enforcement of administrative subjects, It also plays a positive role in promoting the process of rule of law in our country. However, in the field of administrative litigation, it is not easy to identify illegal evidence. Scholars have broad sense and narrow sense about the scope of administrative illegal evidence. And the scope of exclusion of illegal evidence also exists absolute exclusion and selective exclusion. At the same time, when the judicial organs examine the administrative evidence, they also encounter a series of problems, such as the absence of the rules governing the exclusion of evidence in the administrative legislation of our country, the discretionary power of the administrative organs in the process of enforcing the law, and so on. These problems have caused the dilemma of illegal evidence identification in the administrative field of our country. Therefore, the purpose of this paper is to select three administrative cases with more controversial points, and to analyze how the judicial organs of our country identify and exclude the illegal administrative evidence in the administrative proceedings through the actual cases. This paper is divided into three parts to analyze and study illegal evidence in administrative field. The first part begins with the basic theory of the exclusion rules of illegal evidence in the field of administrative litigation, expounds the theoretical basis of the exclusion of illegal evidence, and after enumerating and evaluating the relevant legislative provisions on the exclusion of illegal evidence in the administrative field of our country, Based on this, it leads to the problems to be discussed in the later part of this paper. In the second part, we carefully analyze the relevant facts of the three typical cases selected and the reasons given by the judicial organs for the determination and exclusion of the evidence in the judgment. In order to explain how the judicial organs in the field of administrative proceedings to identify and review illegal evidence. The first case starts with the procedure of obtaining evidence and the legal form of administrative evidence. The second case mainly starts with the temptation of the administrative organ and the method of obtaining evidence by violence. The third case starts from the aspects of the appropriateness of the subject of evidence and the secret means of obtaining evidence from the administrative organs, through these six aspects of the three cases, This paper discusses in detail the enforcement of the exclusion of the administrative illegal evidence and the application of the rule of the exclusion of the illegal evidence in the judicial practice of our country. The third part puts forward the dilemma of applying illegal evidence exclusion rules in administrative litigation from the aspects of legislation, law enforcement and judicial review. First of all, in legislation, our country lacks a unified and standardized "Administrative procedure Law", and the existing legal and judicial interpretations have unclear provisions on the exclusion of evidence and vague semantic terms, which also lead to the dilemma of the exclusion of administrative illegal evidence. A series of factors, such as weak legal consciousness of Chinese citizens, low awareness of law enforcement agencies' administration according to law, imperfect system of judicial organs, etc., also lead to the difficulty of applying the rule of exclusion of administrative illegal evidence in practice. Through the above reflection and suggestions, the author hopes to promote the administrative organs to improve the level of administration according to law and law enforcement, and to promote the development and improvement of the rule of exclusion of illegal evidence in our country.
【学位授予单位】：华东政法大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D925.3
【参考文献】
相关期刊论文 前2条
1 姜明安;;行政诉讼中的检察监督与行政公益诉讼[J];法学杂志;2006年02期
2 张建伟;证据法学的理论基础[J];现代法学;2002年02期
本文编号：2150927
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