我国辩诉交易制度建构研究
发布时间：2018-09-10 17:23
【摘要】：随着社会经济水平的提高,刑事犯罪的案件数也在增多,这使得司法机关的压力愈发增大。虽然我国已经通过引入简易程序,被告人认罪的普通刑事案件简易审等制度对司法体制进行了改革,但并不能完全地解决这一问题。而产生于美国的辩诉交易制度则能在较大程度上提高诉讼效率,并因此被许多国家纳入立法范畴。辩诉交易制度一般指控辩双方在法院开庭审判之前,对与定罪、量刑等问题进行协商,最终由检察机关向法院提出从宽处罚的建议等方式,以此来换取被告人的有罪答辩。我国虽尚未引入辩诉交易制度,但该制度中的许多理念均可被借鉴吸收,从而缓解司法机关的压力现状,这也是本文论述的核心观点之一本文共分为五个章节进行叙述：首先是对辩诉交易制度的概念进行了解析并梳理了辩诉交易制度的理论基础,之后以黑龙江省“辩诉交易第一案”的案件分析作为引入,并阐述了一些该事件所引发的事后影响的细节,进而提出辩诉交易制度可能被引入我国的设想。第二章则具体地对辩诉交易制度引入我国的必要性进行了分析,主要包括提高诉讼效率的要求,弥补现有程序的不足以及从被害人的利益角度出发等三个方面。第三章则分析了辩诉交易制度本土化的可行性,这也是为引入该制度提供依据,具体内容包括构建和谐社会的要求,刑事和解制度的立法启示,实用主义与契约主义的深入发展以及当事人主义诉讼结构的引入等四个方面。但应当预见到,新制度的引入必将面临着重重考验。因此第四章着重分析了在进行制度本土化过程中可能遭受到的障碍,如作为辩诉交易制度基础的实用主义与契约文化在我国尚未被完全接受,诉讼结构与辩诉交易制度不相匹配,检察机关的起诉裁量权的范围较小以及我国沉默权制度的被接纳程度等四个方面的内容。本文的最后则对辩诉交易制度引入我国的可能形式进行了勾勒,这也是全文中较为重要的一部分,该部分中一方面涉及到制度本身的设计,如主体、范围、内容、程序以及效力分析,但由于这一制度与我国的司法制度相脱节可能造成较大的障碍,所以另一方面涉及了相关制度的改革,如之前章节所提到的检察机关的起诉裁量权问题,以及此外关于辩护律师权利保护的完善和极为重要的证据开示制度的完善。辩诉交易制度在如美国等国家发挥了巨大的作用,但也引发了一定的不良后果。任何制度都可能是一把双刃剑,我国在引入辩诉交易制度时应当在制度设计上将该制度本土化,对其优点进行充分借鉴,而尽量减少其不良影响,从而建立中国特色的辩诉交易制度。
[Abstract]:With the improvement of social and economic level, the number of criminal cases is also increasing, which makes the pressure of the judiciary increasing. Although China has reformed the judicial system through the introduction of summary procedure and the summary trial of ordinary criminal cases in which the accused pleads guilty, this problem cannot be solved completely. The plea bargaining system, which originated in the United States, can improve the efficiency of litigation to a great extent, and is brought into the scope of legislation by many countries. Plea bargaining system generally refers to the prosecution and defense in court before the trial, and the conviction, sentencing and other issues are negotiated, and finally by the procuratorial organs to the court to put forward lenient punishment, and so on, in exchange for the defendant's guilty defense. Although the plea bargaining system has not yet been introduced in our country, many of the ideas in the system can be used for reference and absorbed, thus alleviating the pressure on the judicial organs. This is also one of the core points discussed in this paper, which is divided into five chapters: firstly, it analyzes the concept of plea bargaining system and combs the theoretical basis of plea bargaining system. Then it introduces the case analysis of "the first case of plea bargaining" in Heilongjiang Province, and expounds some details of the after-effect caused by the event, and then puts forward the assumption that the system of plea bargaining may be introduced into our country. The second chapter concretely analyzes the necessity of introducing plea bargaining system into our country, including the requirements of improving the efficiency of litigation, making up for the deficiency of existing procedure and proceeding from the angle of the interests of the victims. The third chapter analyzes the feasibility of localization of plea bargaining system, which also provides the basis for the introduction of the system, including the requirements of building a harmonious society, the legislative enlightenment of the criminal reconciliation system. The further development of pragmatism and contract doctrine and the introduction of litigant litigation structure. However, it should be predicted that the introduction of the new system will be faced with many tests. Therefore, the fourth chapter focuses on the analysis of the obstacles that may be encountered in the process of institutional localization, such as pragmatism and contract culture, which are the basis of plea bargaining system, have not been fully accepted in our country. The litigation structure does not match with the plea bargaining system, the scope of prosecution discretion of procuratorial organs is relatively small, and the degree of acceptance of the right to silence system in China is four aspects. The last part of this paper outlines the possible forms of plea bargaining system introduced into our country, which is also an important part of the full text. On the one hand, it involves the design of the system itself, such as subject, scope, content, etc. Procedure and effectiveness analysis, but because the disconnection between this system and the judicial system of our country may cause great obstacles, on the other hand, it involves the reform of relevant system, such as the prosecution discretion of the procuratorial organ mentioned in the previous chapter. In addition, the protection of the rights of defense counsel and the perfection of the extremely important system of discovery of evidence. Plea bargaining system has played a great role in countries such as the United States, but also caused some adverse consequences. Any system may be a double-edged sword. When introducing plea bargaining system, our country should localize the system, draw lessons from its advantages, and minimize its adverse effects. So as to establish the system of plea bargaining with Chinese characteristics.
【学位授予单位】：南京大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D925.2
本文编号：2235111
[Abstract]:With the improvement of social and economic level, the number of criminal cases is also increasing, which makes the pressure of the judiciary increasing. Although China has reformed the judicial system through the introduction of summary procedure and the summary trial of ordinary criminal cases in which the accused pleads guilty, this problem cannot be solved completely. The plea bargaining system, which originated in the United States, can improve the efficiency of litigation to a great extent, and is brought into the scope of legislation by many countries. Plea bargaining system generally refers to the prosecution and defense in court before the trial, and the conviction, sentencing and other issues are negotiated, and finally by the procuratorial organs to the court to put forward lenient punishment, and so on, in exchange for the defendant's guilty defense. Although the plea bargaining system has not yet been introduced in our country, many of the ideas in the system can be used for reference and absorbed, thus alleviating the pressure on the judicial organs. This is also one of the core points discussed in this paper, which is divided into five chapters: firstly, it analyzes the concept of plea bargaining system and combs the theoretical basis of plea bargaining system. Then it introduces the case analysis of "the first case of plea bargaining" in Heilongjiang Province, and expounds some details of the after-effect caused by the event, and then puts forward the assumption that the system of plea bargaining may be introduced into our country. The second chapter concretely analyzes the necessity of introducing plea bargaining system into our country, including the requirements of improving the efficiency of litigation, making up for the deficiency of existing procedure and proceeding from the angle of the interests of the victims. The third chapter analyzes the feasibility of localization of plea bargaining system, which also provides the basis for the introduction of the system, including the requirements of building a harmonious society, the legislative enlightenment of the criminal reconciliation system. The further development of pragmatism and contract doctrine and the introduction of litigant litigation structure. However, it should be predicted that the introduction of the new system will be faced with many tests. Therefore, the fourth chapter focuses on the analysis of the obstacles that may be encountered in the process of institutional localization, such as pragmatism and contract culture, which are the basis of plea bargaining system, have not been fully accepted in our country. The litigation structure does not match with the plea bargaining system, the scope of prosecution discretion of procuratorial organs is relatively small, and the degree of acceptance of the right to silence system in China is four aspects. The last part of this paper outlines the possible forms of plea bargaining system introduced into our country, which is also an important part of the full text. On the one hand, it involves the design of the system itself, such as subject, scope, content, etc. Procedure and effectiveness analysis, but because the disconnection between this system and the judicial system of our country may cause great obstacles, on the other hand, it involves the reform of relevant system, such as the prosecution discretion of the procuratorial organ mentioned in the previous chapter. In addition, the protection of the rights of defense counsel and the perfection of the extremely important system of discovery of evidence. Plea bargaining system has played a great role in countries such as the United States, but also caused some adverse consequences. Any system may be a double-edged sword. When introducing plea bargaining system, our country should localize the system, draw lessons from its advantages, and minimize its adverse effects. So as to establish the system of plea bargaining with Chinese characteristics.
【学位授予单位】：南京大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D925.2
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