法官庭外调查制度实证研究

发布时间：2018-08-08 13:30

【摘要】：刑事审判中，，法庭审理过程遇到存疑证据时，由法官走出法庭对相关证据进行调查核实，以确认该存疑证据的真实性、合法性与客观性，明确案件真相，进而有助于内心判断的形成，作出正确裁判。这就是法官的庭外调查权。法官庭外调查是法庭审判在庭外的延伸，具有相应的权力属性，法官应在调查核实证据时保持消极中立姿态。我国刑事诉讼法虽然历经两次修改，但仍对存在较多争议的法官庭外调查制度在稍加限制的基础上予以保留，缺少明确细致的规定。由于法官庭外调查制度的规定过于笼统，司法实践中法官庭外调查制度存在诸多问题，深刻体现出该制度实体公正与程序公正方面的价值冲突。但受我国历史文化传统的影响、职权主义因素的主导以及控辩力量严重不平衡的现实基础，法官庭外调查制度在我国有其存在的合理性和必要性。在借鉴域外法系尤其是大陆法系国家和“混合型”诉讼模式国家对法官庭外调查制度设计中展现出来的优点基础上，立足我国司法实践的具体国情，对法官庭外调查制度进行相应的改革和完善，以更好地服务刑事审判“惩罚犯罪与保障人权”的目的。本文将通过实证研究和比较分析的方法反思我国现行的相关法律制度。在理论分析的基础上围绕其存在的价值范畴提出对我国刑事诉讼中的法官庭外调查制度改革和完善的建议。本文分为引言、正文、结语三部分，文章正文主要由四部分构成：第一部分是对刑事法官庭外调查权的相关内容进行概述，明确法官庭外调查是证据调查的一部分，具有刑事审判权的权力属性，法官在庭外调查过程中应保持中立姿态。第二部分采取比较研究的方法，借鉴大陆法系国家对法官庭外调查制度的设计亮点以及混合主义诉讼模式下对法官庭外调查进行的改良，并同英美法系国家的庭外视察程序相区别，分析不同诉讼模式下对法官庭外调查制度采取不同态度所体现出的价值冲突及平衡，以便对我国的法官庭外调查制度进行完善。第三部分是对我国法官庭外调查情况的具体阐述。分析我国应予保留法官庭外调查制度的国情原因，梳理我国法官庭外调查制度的法律沿革，在此基础上总结我国现行法官庭外调查制度的具体内容。通过对调研数据进行分析，阐述我国基层法院刑事一审程序中法官庭外调查制度的运行情况及实施成效。第四部分则是提出对我国刑事法官庭外调查制度的完善建议。在实证研究的基础上结合相关国家在设计运行法官庭外调查制度方面的可取之处，对我国的法官庭外调查程序进行重构。主要从法官庭外调查的启动、法官庭外调查的运行和法官庭外调查的证据认定等方面进行论述。
[Abstract]:In a criminal trial, when there is evidence of doubt in the course of a court trial, the judge goes out of the court to investigate and verify the relevant evidence in order to confirm the authenticity, legality and objectivity of the suspect evidence, and to ascertain the truth of the case. And then help the formation of inner judgment, to make the correct judgment. This is the judge's right to investigate out of court. Judge's out of court investigation is the extension of court trial out of court, and has the corresponding power attribute, the judge should maintain the passive neutral posture when investigating and verifying the evidence. Although the Criminal procedure Law of our country has been amended twice, it still retains the system of out-of-court investigation of judges, which is controversial, on the basis of a little restriction, and lacks clear and detailed regulations. There are many problems in the system of out of court investigation of judges in judicial practice, which deeply reflects the value conflict between substantive justice and procedural justice of the system. However, under the influence of our country's historical and cultural tradition, the leading factor of authority doctrine and the realistic foundation of serious imbalance of the power of prosecution and defense, the system of out-of-court investigation of judges has its rationality and necessity in our country. On the basis of drawing lessons from the advantages of the design of the out-of-court investigation system of the judges in the extra-territorial law system, especially in the countries of the continental law system and the "mixed" litigation mode, this paper bases itself on the specific conditions of the judicial practice in our country. In order to better serve the purpose of criminal trial "punishing crime and protecting human rights", the investigation system of judges out of court should be reformed and perfected accordingly. This paper will reflect on the current legal system of our country through empirical research and comparative analysis. On the basis of theoretical analysis, the author puts forward some suggestions on the reform and perfection of the out-of-court investigation system of judges in criminal proceedings in China. This paper is divided into three parts: introduction, text, conclusion. The main body of the article is composed of four parts: the first part is to summarize the relevant content of the criminal judge's out-of-court investigation power, and to make it clear that the judge's out-of-court investigation is a part of the evidence investigation. With the power of criminal jurisdiction, the judge should maintain a neutral attitude in the process of out-court investigation. The second part adopts the method of comparative study, drawing lessons from the design highlights of the judge out of court investigation system in the countries of civil law system and the improvement of the judge out of court investigation under the mixed litigation mode. In order to perfect the out of court investigation system of our country, this paper analyzes the value conflict and balance of the different attitude towards the out of court investigation system of the judge under the different litigation mode, which is different from the out of court inspection procedure of the common law system countries in order to perfect the out of court investigation system of the judge in our country. The third part is to our country judge out of court investigation situation concrete elaboration. This paper analyzes the reasons why the investigation system of judges out of court should be retained in our country, combs the legal evolution of the investigation system of judges out of court in our country, and sums up the concrete contents of the current system of out of court investigation of judges in our country. By analyzing the investigation data, this paper expounds the operation and effect of the out-of-court investigation system of the judges in the criminal first instance procedure of our country's grass-roots courts. The fourth part is to put forward the perfect suggestion to our country criminal judge out of court investigation system. On the basis of empirical research, the author reconstructs the investigation procedure of judges out of court in our country by combining with the merits of the relevant countries in designing and running the investigation system of judges out of court. This paper mainly discusses the initiation of the out-of-court investigation of the judge, the operation of the out-of-court investigation of the judge and the confirmation of the evidence of the out-of-court investigation of the judge.
【学位授予单位】：西南政法大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D925.2

【参考文献】