论被追诉人辩解
发布时间：2018-08-06 21:34
【摘要】：随着司法改革的不断深入和司法工作的透明化,公众对司法工作的了解也越来越深。但同时司法工作的一些不足也逐渐显露出来,层出不穷的冤假错案触痛着民众的神经,也引起了国家领导人的高度重视。习近平总书记多次在讲话中强调决不允许滥用权力侵犯群众合法权益,决不允许执法犯法造成冤假错案。要防范冤假错案,最根本还是要保证被追诉人的各项权利能得到有效保障和行使,刑事诉讼严格按照法定程序进行。而被追诉人辩解作为被追诉人及其重要的一项权利,在实践中也最容易受到忽视和侵犯。 被追诉人辩解是我国理论界鲜有涉及的问题,此前曾有学者对被追诉人供述和辩解的概念加以界定,对口供的使用规则加以研究,但却少有人对被追诉人辩解进行系统的理论研究。本文将结合当前防范冤假错案的背景,对涉及被追诉人辩解的相关理论和实务工作进行阐释和介绍,希望能为完善对被追诉人的权利保障,防范冤假错案的发生作出一点贡献。 本文除引言、结论外,共分为六个部分： 第一部分,被追诉人辩解的理论界定。通过对被追诉人辩解的作出主体、主要内容、作出形式等多个方面阐释被追诉人辩解的内涵,并通过比较与供述、口供、攀供、自白等概念加以区分。 第二部分,被追诉人辩解诉讼功用分析。被追诉人辩解作为一种法定的证据形式存在,在诉讼过程中发挥着独特的功用,本部分从有效辩护、程序正义、控辩平衡、无罪推定、防范冤假错案、全面和准确作出司法判断、裁判说理等几个角度入手,深入分析被追诉人辩解在刑事诉讼过程中所展现的程序和实体两方面的功用,以着力表现保障被追诉人辩解的重要理论和现实意义。 第三部分,被追诉人辩解与证明责任。被追诉人在刑事诉讼过程中可以提出自己的辩解意见。被追诉人要不要对自己的辩解意见承担证明责任,决定了被追诉人要不要承担举证不能而带来的不利后果。本部分通过对无罪推定原则的解读得出结论,即辩解是被追诉人的一项权利,其辩解的真伪须由侦查机关、检察机关予以调查,进而在庭审阶段由控方对被告人有罪承担证明责任,原则上被告人不承担证明自己无罪的责任。 第四部分,被追诉人辩解立法规定和司法适用的域外考察。本部分将从国际视角考察英美法系国家和大陆法系国家对被追诉人辩解相关问题的规定和做法,以期通过汲取其他国家的先进经验来完善我国的司法制度。 第五部分,被追诉人辩解适用的法律现状。目前我国在法律层面对保障被追诉人辩解作了比较详细的规定,但在实践运行中却实现了一些偏差。本部分通过阐释我国被追诉人辩解的理论依据和运行现状,指出在实务中被追诉人辩解还尚未得到有效保障,被追诉人的辩护权遭受侵犯的现象还时有发生,并且对被追诉人辩解的侵犯极易造成冤假错案的发生。 第六部分,被追诉人辩解理性适用的诉讼对策。本部分将通过对前述问题的分析,结合当前实务中存在的问题,借鉴国外在保障被追诉人权利方面的先进成果,提出自己对完善被追诉人辩解的构想和对策。
[Abstract]:With the deepening of judicial reform and the transparency of judicial work, the public's understanding of the judicial work is becoming more and more deep. At the same time, some of the shortcomings of the judicial work have been gradually revealed. The unjust and false cases that emerge in an endless stream have touched the people's nerves and have aroused the high attention of the leaders of the state. General Secretary Xi Jinping has been strong in his speech many times. It is not allowed to abuse power to infringe the legitimate rights and interests of the masses, and never allow law enforcement offense to cause wrongful and false cases. To prevent wrongful and false cases, the most fundamental is to ensure that the rights of the accused can be effectively guaranteed and exercised, and the criminal proceedings are carried out in strict accordance with the legal procedure. The accused is accused of being the accused and an important one. The right of item is also easily ignored and violated in practice.
The plead of the accused is a problem rarely involved in the theoretical circle of our country. Before, some scholars have defined the concept of confession and justification of the accused and studied the rules of the use of the confession, but few have made systematic theoretical research on the pleas of the accused. The interpretation and introduction of the relevant theories and practical work of the justification hope to make a contribution to the improvement of the rights protection of the accused and the prevention of the wrongful and false cases.
In addition to the introduction and conclusion, this paper is divided into six parts:
The first part is the theoretical definition of the defendant's argument. Through the subject, the main content and the form of the defendant, it explains the connotation of the defendant's argument, and makes a distinction between the confession, the confession, the confession, the confession and the confession.
In the second part, the prosecutor defends the analysis of litigation function. The defendant pleads as a statutory form of evidence and plays a unique function in the process of litigation. This part of this part is from effective defense, procedural justice, balance of prosecution and defense, presumption of innocence, prevention of wrongful and false cases, judicial judgment, judicial judgment and other angles. Hand, in depth analysis of the two aspects of the procedure and entity demonstrated by the accused in the process of criminal proceedings, in order to demonstrate the important theory and practical significance of ensuring the defendant's defense.
The third part is the defendant's justification and the burden of proof. The accused may put forward his own argument in the process of criminal proceedings. The accused shall bear the burden of proof of his own argument, and decide whether the defendant should bear the negative consequences of the proof. The conclusion is that the justification is a right of the accused. The true or false of the defense must be investigated by the investigative organ and the procuratorial organ, and then the prosecution is responsible for the defendant to prove guilty at the stage of trial. In principle, the defendant does not bear the responsibility of proving his innocence.
In the fourth part, the prosecutor defends the legislative provisions and the extraterritorial investigation of the judicial application. This part will examine the provisions and practices of the Anglo American law and civil law countries to justify the related issues from the Anglo American legal system and the civil law countries from the international perspective, with a view to completing the judicial system of our country through the advanced experience of other countries.
The fifth part, the prosecuted person defends the applicable legal status. At present, China has made a more detailed provision in the legal level to defend the accused who has been prosecuted, but it has realized some deviations in the practice. This part explains the theoretical basis and operation status of the defendant in our country, and points out that the defendant is still a defendant in practice. The infringement of the defendant's right to defense has not been effectively guaranteed, and the infringement of the accused is very easy to cause the occurrence of the wrongful and false cases.
In the sixth part, the prosecuted person defends the rational application of the litigation countermeasures. Through the analysis of the previous problems and the existing problems in the current practice, this part will draw on the advanced achievements of foreign countries in guaranteeing the rights of the accused to be prosecuted and put forward their own ideas and Countermeasures for the improvement of the defendant's defense.
【学位授予单位】：山东大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D925.2
本文编号：2169054
[Abstract]:With the deepening of judicial reform and the transparency of judicial work, the public's understanding of the judicial work is becoming more and more deep. At the same time, some of the shortcomings of the judicial work have been gradually revealed. The unjust and false cases that emerge in an endless stream have touched the people's nerves and have aroused the high attention of the leaders of the state. General Secretary Xi Jinping has been strong in his speech many times. It is not allowed to abuse power to infringe the legitimate rights and interests of the masses, and never allow law enforcement offense to cause wrongful and false cases. To prevent wrongful and false cases, the most fundamental is to ensure that the rights of the accused can be effectively guaranteed and exercised, and the criminal proceedings are carried out in strict accordance with the legal procedure. The accused is accused of being the accused and an important one. The right of item is also easily ignored and violated in practice.
The plead of the accused is a problem rarely involved in the theoretical circle of our country. Before, some scholars have defined the concept of confession and justification of the accused and studied the rules of the use of the confession, but few have made systematic theoretical research on the pleas of the accused. The interpretation and introduction of the relevant theories and practical work of the justification hope to make a contribution to the improvement of the rights protection of the accused and the prevention of the wrongful and false cases.
In addition to the introduction and conclusion, this paper is divided into six parts:
The first part is the theoretical definition of the defendant's argument. Through the subject, the main content and the form of the defendant, it explains the connotation of the defendant's argument, and makes a distinction between the confession, the confession, the confession, the confession and the confession.
In the second part, the prosecutor defends the analysis of litigation function. The defendant pleads as a statutory form of evidence and plays a unique function in the process of litigation. This part of this part is from effective defense, procedural justice, balance of prosecution and defense, presumption of innocence, prevention of wrongful and false cases, judicial judgment, judicial judgment and other angles. Hand, in depth analysis of the two aspects of the procedure and entity demonstrated by the accused in the process of criminal proceedings, in order to demonstrate the important theory and practical significance of ensuring the defendant's defense.
The third part is the defendant's justification and the burden of proof. The accused may put forward his own argument in the process of criminal proceedings. The accused shall bear the burden of proof of his own argument, and decide whether the defendant should bear the negative consequences of the proof. The conclusion is that the justification is a right of the accused. The true or false of the defense must be investigated by the investigative organ and the procuratorial organ, and then the prosecution is responsible for the defendant to prove guilty at the stage of trial. In principle, the defendant does not bear the responsibility of proving his innocence.
In the fourth part, the prosecutor defends the legislative provisions and the extraterritorial investigation of the judicial application. This part will examine the provisions and practices of the Anglo American law and civil law countries to justify the related issues from the Anglo American legal system and the civil law countries from the international perspective, with a view to completing the judicial system of our country through the advanced experience of other countries.
The fifth part, the prosecuted person defends the applicable legal status. At present, China has made a more detailed provision in the legal level to defend the accused who has been prosecuted, but it has realized some deviations in the practice. This part explains the theoretical basis and operation status of the defendant in our country, and points out that the defendant is still a defendant in practice. The infringement of the defendant's right to defense has not been effectively guaranteed, and the infringement of the accused is very easy to cause the occurrence of the wrongful and false cases.
In the sixth part, the prosecuted person defends the rational application of the litigation countermeasures. Through the analysis of the previous problems and the existing problems in the current practice, this part will draw on the advanced achievements of foreign countries in guaranteeing the rights of the accused to be prosecuted and put forward their own ideas and Countermeasures for the improvement of the defendant's defense.
【学位授予单位】：山东大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D925.2
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