C市捕后羁押必要性审查实务研究
发布时间：2018-08-06 08:34
【摘要】：为强化人民检察院对羁押措施的监督,防止和纠正超期羁押、不必要的持续关押,现行刑事诉讼法第九十三条赋予检察机关捕后羁押必要性审查权限和职能,彰显出我国刑事诉讼价值取向的深刻变化和刑事法治的不断进步。最高人民检察院新修订的《人民检察院刑事诉讼规则(试行)》对捕后羁押必要性审查作了较为细化的规定,具有较高的可操作性。但是,我国法学界和实践部门仍然对捕后羁押必要性审查的一些具体问题存在争议,认为捕后羁押必要性审查制度仍然不够完善。有鉴于此,笔者以C市检察院捕后羁押必要性审查实务运作为主要对象,通过直接观察、调查、案例及相关文献收集、分析等方法,具体考察捕后羁押必要性审查机制运行情况,探讨存在的问题和对策。本文认为,首先,捕后羁押必要性审查与逮捕必要性审查具有紧密关系,二者的联系在于,它们都是广义上的羁押必要性审查,审查内容基本一致,就运作程序而言,捕后羁押必要性审查是逮捕必要性审查的延伸,其区别主要体现为审查的权利属性、制度功能及部分审查内容不相同,简言之,捕后羁押必要性审查具有进一步强化嫌疑人、被告人权利保护、有效控制羁押权及保证羁押合理性的性质和功能。其次,本文专门讨论了C市审查逮捕和捕后羁押必要性审查的基本情况。笔者发现,批捕环节基本维持较高批捕率,以构罪即捕为原则；虽然不同时候逮捕率有所起伏,但总体处于高羁押率态势,捕后羁押必要性审查对减少羁押的效果有所显现,但不突出。笔者认为,这种不利情况与捕后羁押必要性审查的某些机制有关：一是,启动审查时间和审查期限没有具体规定,不能保证审查的科学性、及时性和合理性；二是,公诉部门案多人少压力大,办案人员不愿承担捕后羁押必要性审查,因而开展审查甚少；三是,实际进行的审查以书面审查为主,听证审查是探索,审查对象采取过滤筛选方法确定,重点审查内容为被羁押人是否仍然具有社会危险性,是否会妨碍诉讼进行；四是,捕后羁押必要性审查程序基本上采用层报方式,责任落实到人,权责明确；实践效果表现为逮捕变更为其他强制措施的比例上升,但变更原因较为集中,主要是“患有严重疾病、刑事和解、系生活不能自理人的唯一抚养人”等较为客观、直观,容易判断的原因。再者,本文分析了捕后羁押必要性审查的配套机制,发现律师代为申请羁押必要性审查案件非常少,没有充分发挥维护当事人利益的角色职能；内部沟通机制不完善；责任追究机制尚未建立,审查程序所规定的“责任到人”无法落实。最后,笔者总结了C市的一些实践经验：审查启动的全面性保障了犯罪嫌疑人、被告人获得救济的权利的行使；主次分明的审查内容避免了“一案一查”,很大程度解放了有限的司法资源；合理的配套制度不仅督促检察机关认真对待,一定程度上起到了息诉罢访的作用。针对问题,笔者提出如下建议：规定定期审查和随机审查；从制度上对公诉部门不作为加以规范和督促；扩大案件审查范围；建立责任追究机制,落实责任到人；加大羁押替代性强制措施的实施和监督,提高其在保障诉讼顺利进行中的作用。
[Abstract]:In order to strengthen the supervision of the detention measures by the people's Procuratorate, prevent and correct the overdue detention and unnecessarily continuous detention, the ninety-third article of the current criminal procedure law endows the procuratorial organs with the necessity of examining the necessity of post arrest, and shows the profound changes in the value orientation of the criminal procedure in China and the continuous progress of the criminal law. The newly revised law of the people's Procuratorate (Trial) of the people's Procuratorate (Trial) > has made a more detailed regulation on the review of the necessity of post arrest detention, which has high operability. However, there are still disputes over some specific problems in the review of the necessity of post arrest detention in the legal and practical departments of China. In view of this, the author takes the review practice of the necessity of arrest detention in the C city procuratorate as the main object, through direct observation, investigation, case and related literature collection, analysis and other methods, to examine the operation of the review mechanism of the necessity of post arrest, and discuss the existing problems and countermeasures. The relationship between the sexual review and the necessity of the arrest is closely related. The connection between the two is that they are all the necessary reviews of the detention in a broad sense, and the contents of the review are basically consistent. In terms of the operation procedure, the review of the necessity of post arrest is an extension of the review of the necessity of arrest, and the difference between the rights, the system function and the part of the review. In short, the review of the necessity of post arrest has the nature and function of further strengthening the suspect, the protection of the defendant's rights, the effective control of the right to detain and the reasonableness of the detention. Secondly, the basic situation of the review of the necessity of arrest and arrest in C is discussed in this paper. The author finds that the link of arrest is basic. The principle of high arrest rate is maintained in order to construct a crime or arrest. Although the arrest rate has fluctuated in different times, it is generally in the high detention rate, and the review of the necessity of post arrest has some effect on the reduction of detention, but it is not outstanding. There is no specific provision for the examination time and period of review, which can not guarantee the scientificity, timeliness and rationality of the review; two, the public prosecution case is less stressed, the case handling personnel do not want to undertake the review of the necessity of post arrest, and the review is very small; the three is that the actual review is based on written examination, and the hearing review is the exploration and review. To determine whether the detainees still have social danger and whether it will impede the litigation; four, the review procedure of the necessity of post arrest is basically adopted, the responsibility is implemented and the responsibility is clear, and the practice result is the proportion of the arrest change to other coercive measures. But the reasons for the change are more concentrated, which are mainly "serious diseases, criminal reconciliation, the sole rearing of the person who can not take care of themselves" and other objective, intuitive, and easy to judge. Furthermore, this article analyses the supporting mechanism of the review of the necessity of post arrest, and a very few cases of the examination of the necessity of applying for detention. The function of the role of maintaining the interests of the parties is fully played; the internal communication mechanism is not perfect; the accountability mechanism has not been established, and the "responsibility to the person", as stipulated in the review procedure, can not be implemented. Finally, the author summarizes some practical experiences of the C City: the comprehensive nature of the review starts the rights of the suspects and the defendants to obtain the right to relief. The clear examination content of the main and secondary has avoided the "one case and one check" and liberated the limited judicial resources to a great extent; the reasonable supporting system not only urged the procuratorial organ to seriously treat it, but also played the role of interest complaint to some extent. In view of the problems, the author put forward the following suggestions: regular review and random examination; from the system of system, On the level of public prosecution, the inaction of the public prosecution is regulated and urged, the scope of the case review, the establishment of the accountability mechanism, the implementation of the responsibility to the person, the implementation and supervision of the alternative coercive measures in detention, and the enhancement of their role in the smooth progress of the safeguards litigation.
【学位授予单位】：西南大学
【学位级别】：硕士
【学位授予年份】：2015
【分类号】：D925.2
本文编号：2167149
[Abstract]:In order to strengthen the supervision of the detention measures by the people's Procuratorate, prevent and correct the overdue detention and unnecessarily continuous detention, the ninety-third article of the current criminal procedure law endows the procuratorial organs with the necessity of examining the necessity of post arrest, and shows the profound changes in the value orientation of the criminal procedure in China and the continuous progress of the criminal law. The newly revised law of the people's Procuratorate (Trial) of the people's Procuratorate (Trial) > has made a more detailed regulation on the review of the necessity of post arrest detention, which has high operability. However, there are still disputes over some specific problems in the review of the necessity of post arrest detention in the legal and practical departments of China. In view of this, the author takes the review practice of the necessity of arrest detention in the C city procuratorate as the main object, through direct observation, investigation, case and related literature collection, analysis and other methods, to examine the operation of the review mechanism of the necessity of post arrest, and discuss the existing problems and countermeasures. The relationship between the sexual review and the necessity of the arrest is closely related. The connection between the two is that they are all the necessary reviews of the detention in a broad sense, and the contents of the review are basically consistent. In terms of the operation procedure, the review of the necessity of post arrest is an extension of the review of the necessity of arrest, and the difference between the rights, the system function and the part of the review. In short, the review of the necessity of post arrest has the nature and function of further strengthening the suspect, the protection of the defendant's rights, the effective control of the right to detain and the reasonableness of the detention. Secondly, the basic situation of the review of the necessity of arrest and arrest in C is discussed in this paper. The author finds that the link of arrest is basic. The principle of high arrest rate is maintained in order to construct a crime or arrest. Although the arrest rate has fluctuated in different times, it is generally in the high detention rate, and the review of the necessity of post arrest has some effect on the reduction of detention, but it is not outstanding. There is no specific provision for the examination time and period of review, which can not guarantee the scientificity, timeliness and rationality of the review; two, the public prosecution case is less stressed, the case handling personnel do not want to undertake the review of the necessity of post arrest, and the review is very small; the three is that the actual review is based on written examination, and the hearing review is the exploration and review. To determine whether the detainees still have social danger and whether it will impede the litigation; four, the review procedure of the necessity of post arrest is basically adopted, the responsibility is implemented and the responsibility is clear, and the practice result is the proportion of the arrest change to other coercive measures. But the reasons for the change are more concentrated, which are mainly "serious diseases, criminal reconciliation, the sole rearing of the person who can not take care of themselves" and other objective, intuitive, and easy to judge. Furthermore, this article analyses the supporting mechanism of the review of the necessity of post arrest, and a very few cases of the examination of the necessity of applying for detention. The function of the role of maintaining the interests of the parties is fully played; the internal communication mechanism is not perfect; the accountability mechanism has not been established, and the "responsibility to the person", as stipulated in the review procedure, can not be implemented. Finally, the author summarizes some practical experiences of the C City: the comprehensive nature of the review starts the rights of the suspects and the defendants to obtain the right to relief. The clear examination content of the main and secondary has avoided the "one case and one check" and liberated the limited judicial resources to a great extent; the reasonable supporting system not only urged the procuratorial organ to seriously treat it, but also played the role of interest complaint to some extent. In view of the problems, the author put forward the following suggestions: regular review and random examination; from the system of system, On the level of public prosecution, the inaction of the public prosecution is regulated and urged, the scope of the case review, the establishment of the accountability mechanism, the implementation of the responsibility to the person, the implementation and supervision of the alternative coercive measures in detention, and the enhancement of their role in the smooth progress of the safeguards litigation.
【学位授予单位】：西南大学
【学位级别】：硕士
【学位授予年份】：2015
【分类号】：D925.2
【参考文献】
相关期刊论文 前10条
1 卞建林;张璐;;刑事强制措施的完善与实施[J];安徽大学学报(哲学社会科学版);2013年01期
2 王树茂;;“羁押必要性审查”的理解与适用[J];法学评论;2013年06期
3 宋英辉;王贞会;;刑事强制措施修改若干问题[J];暨南学报(哲学社会科学版);2012年01期
4 陈瑞华;未决羁押制度的理论反思[J];法学研究;2002年05期
5 万春;刘辰;;羁押必要性审查制度的思考[J];人民检察;2012年16期
6 高通;;我国台湾地区羁押制度改革研究[J];台湾研究集刊;2011年05期
7 夏阳;徐静村;潘金贵;刘晴;黄常明;汤茜茜;金园园;陈巧巧;;羁押必要性审查制度的理解与适用[J];人民检察;2013年23期
8 李昌盛;;为什么不羁押成为例外——我国侦查羁押常态化探因[J];湘潭大学学报(哲学社会科学版);2009年02期
9 张兆松;;论羁押必要性审查的十大问题[J];中国刑事法杂志;2012年09期
10 陈卫东;万春;宋英辉;苗生明;;羁押必要性审查的理论认识与实践应用[J];国家检察官学院学报;2012年06期
，本文编号：2167149
本文链接：https://www.wllwen.com/falvlunwen/susongfa/2167149.html
