论疑罪从无原则

发布时间：2018-08-03 20:46

【摘要】：疑罪从无原则由来已久，在刑法学界一直备受学者关注，观点分歧较大。目前，疑罪从无原则在我国诉讼法律中已有体现，但还有不完善的地方。本文从疑罪的概念开始介绍，因为把握疑罪从无原则首先必须弄清楚什么是疑罪，关于疑罪的概念争议一直很大，本文的观点是疑罪只包括定罪问题，不包括法律适用问题，把二者严格区别开来，在犯罪嫌疑人或被告的行为是否构成犯罪认定上存在疑难才能称之为疑罪。在各诉讼阶段中，疑罪从无原则在审查起诉和审判阶段已有体现，但还有不够完善的地方，在侦查阶段，我国对出现疑罪的情况并没有规定，所以应当完善侦查阶段出现疑罪情况的立法。根据各国的普遍做法以及我国的实践经验总结，认为在侦查阶段出现疑罪时应当做出撤销案件的决定。在审判程序中，一审程序中对事实不清、证据不足的案件，明确规定应当做出事实不清、证据不足的无罪判决，但在二审及其他程序中，对疑罪的情况并没有直接规定按疑罪从无处理，而是可以查清后改判或者撤销原判发回重审。法律作出这样的规定是出于保障两审终审制度，是为了保证对不清楚的事实的上诉权，但是当今社会是法治社会，发回重审制度意味着整个诉讼程序再走一遍，不仅对于报告的合法权益保护是极为不利的，，而且也不利于提高诉讼效率和节约司法资源。所以建议废除发回重审制度。在对疑罪从无原则有一定认识以及在我国各诉讼阶段的体现有一定认识后，就要开始分析疑罪从无原则在我国全面实施的困境，从观念上、立法上、体制上分析存在的一些问题，争对不同的问题提出不同的完善对策。我国现有的社会观念对于疑罪都是从有或从轻的处理方法，在司法体制上，公检法职能混同，司法不独立，立法上缺失或不够完善，都给疑罪从无原则的实施带来障碍。本文从这三个方面寻找完善对策，转变司法人员及广大群众的观念，完善诉讼各阶段的立法以及确立无罪推定原则，改善司法体制环境，为疑罪从无原则的实施创造各方面的环境。另外，在司法实践中，要严格区分疑罪从无与疑刑从轻的界限，二者一个争对定罪问题，一个争对法律适用问题，在性质上明显不同，在处理方法上也必须区别对待。
[Abstract]:Suspicion of crime has a long history of no principle, in the field of criminal law has been concerned by scholars, opinions are quite different. At present, the suspect crime has been embodied in the litigation law of our country, but there are still some imperfections. This article begins with the concept of suspect, because it is necessary to find out what is suspect first of all. The concept of suspect has always been controversial. The point of view of this paper is that suspicion only includes conviction, not the application of law. To distinguish the two strictly, the suspect or defendant's behavior can be called suspect only if there is difficulty in determining whether the behavior of the suspect or defendant constitutes a crime. In all stages of the proceedings, the suspected crime has been reflected in the stage of examination, prosecution and trial, but there is still not enough perfect place. In the investigation stage, there is no provision for the appearance of the suspected crime in our country. Therefore, we should improve the investigation stage of suspected crime legislation. According to the general practice of various countries and the experience of our country, the author thinks that the decision of withdrawing the case should be made when the suspected crime appears in the investigation stage. In trial proceedings, cases in which facts are unclear and insufficient evidence are not clear in the proceedings of first instance, it is clearly stipulated that an acquittal judgement with unclear facts and insufficient evidence shall be made, but in the second instance and other proceedings, The situation of suspected crime is not directly stipulated that the suspect is never dealt with, but can be checked and rescheduled or rescinded for retrial. The purpose of the law is to guarantee the right of appeal against unclear facts. However, today's society is a society governed by the rule of law. Sending back the system of retrial means that the entire proceedings will be revisited. It is not only unfavorable to the protection of legal rights and interests, but also unfavorable to improving the efficiency of litigation and saving judicial resources. Therefore, it is proposed to abolish the system of retrial. After we have a certain understanding of suspect crime from the principle of no principle and the embodiment of each stage of litigation in our country, we should begin to analyze the dilemma of the full implementation of suspect crime in our country from the point of view of principle and legislation. System analysis of some existing problems, competing for different problems to put forward different improvement measures. The existing social concept of our country is to deal with the suspected crime from the point of view of having or abusing it. In the judicial system, the functions of the Public Security Bureau, the Procuratorate and the Court are mixed, the judicature is not independent, the legislation is lacking or not perfect, all of them bring obstacles to the implementation of the suspected crime without principle. This article looks for the perfect countermeasure from these three aspects, changes the judicial personnel and the general public's idea, consummates the lawsuit each stage legislation and establishes the presumption of innocence principle, improves the judicial system environment, In order to suspect crime from the implementation of the principle of the creation of all aspects of the environment. In addition, in judicial practice, it is necessary to strictly distinguish the boundary between the non-suspect crime and the suspect punishment from the light of the punishment. One dispute is about the conviction and the other is the application of the law, which is obviously different in nature and must be treated differently in the treatment method.
【学位授予单位】：辽宁大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D925.2

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