刑讯逼供防范措施再思考
发布时间：2018-09-19 18:25
【摘要】：近年来，继佘祥林、赵作海、李久明等冤假错案后，刑讯逼供问题越来越受到社会各界的广泛关注，尤其是在法律学术界和司法实务界，对如何防范刑讯逼供的意见不一致。刑讯逼供一直在刑事司法实践中屡禁不止，如何能够杜绝和防范刑讯逼供，成为刑事诉讼中亟待解决的刻不容缓的问题，也对我国的刑事诉讼制度提出了新的挑战。新修正的刑事诉讼法对刑事证据制度进行了重大修改，吸收了《关于办理刑事案件排除非法证据若干问题的规定》和《关于办理死刑案件审查判断证据若干问题的规定》的相关内容，建立了颇具我国刑事司法特色的非法证据排除规则，而非法证据排除规则的规定中关于刑讯逼供的规定无疑是重中之重，也成为刑事诉讼法修改后实施过程中主要针对和适用的规定。可以说，刑事诉讼法修改后的这些规定对限制刑事诉讼领域内的刑讯逼供行为起到积极深远的作用，但是由于刑讯逼供等非法证据排除的法律规定比较粗糙以及缺乏相关配套法律规范等因素，学术界和司法实务界对防范刑讯逼供行为在刑事司法实践上的可操作性提出质疑，通过司法解释“补正”“合理解释”等方式为刑讯逼供取得的非法证据的适用留下了余地，刑讯逼供取得的非法证据在司法实践中不能被排除适用等，也使得法律规定刑讯逼供的防范措施在司法实践中一直存在不能够完全贯彻实施的问题。 因此，笔者拟从我国现有的刑事诉讼法中刑讯逼供的内涵入手，通过阐述修改后的刑事诉讼法关于刑讯逼供内涵的法律规定和司法实践中刑讯逼供的应有内涵，从而对刑讯逼供的内涵作出新的定义。继而从我国防范刑讯逼供的司法现状出发，通过刑事诉讼法修改后对刑讯逼供防范措施提出的新亮点，包括强化了人权保障意识，制定了法庭取证合法化的法庭调查程序，正式确立了法庭审理的证据裁判原则和增加了司法公开程度，加强了法律监督，为防范刑讯逼供找到了法律依据。然而法律规定的刑讯逼供的防范措施在司法实践适用过程中存在一定的不足，这是显而易见的，因而笔者结合自身在办案中的实际感受，从三个方面指出刑讯逼供防范措施在司法适用中存在的不足，从而笔者对防范刑讯逼供提出一系列的完善建议，，这些建议期望能为刑讯逼供的防范提供一些有益的参考，以期随着法制的日益健全发展，能够有效防止和杜绝刑讯逼供行为的发生，更好的保障被告人的合法权益。
[Abstract]:In recent years, following the cases of she Xianglin, Zhao Zuohai and Li Jiuming, the problem of extorting confessions by torture has attracted more and more attention from all walks of life, especially in the legal academic circles and judicial practice, and their opinions on how to prevent extorting confessions by torture are not consistent. Extorting confessions by torture has always been prohibited in criminal judicial practice. How to prevent and stop extorting confessions by torture has become an urgent problem to be solved in criminal proceedings, and it has also posed a new challenge to the criminal procedure system in our country. The newly amended Criminal procedure Law has made major changes to the criminal evidence system. Having absorbed the relevant contents of the provisions on the exclusion of certain questions of illegal evidence in Criminal cases and the provisions on examination and judgment of certain questions of evidence in handling death penalty cases, The rule of exclusion of illegal evidence with the characteristics of criminal justice is established in our country, and the provisions of the rule of exclusion of illegal evidence about extorting confessions by torture are undoubtedly the most important. Also become the criminal procedure law after the implementation of the main process aimed at and applicable provisions. It can be said that these provisions after the revision of the Criminal procedure Law play a positive and far-reaching role in restricting the practice of extorting confessions by torture in the field of criminal proceedings. However, due to the rough legal provisions of illegal evidence exclusion such as extorting confessions by torture and the lack of relevant supporting legal norms and other factors, academia and judicial practice have questioned the maneuverability of preventing torture in criminal judicial practice. It leaves room for the application of the illegal evidence obtained by torture, and the illegal evidence obtained by torture can not be excluded in judicial practice. It also makes the prevention measures of extorting confessions by torture not fully implemented in judicial practice. Therefore, the author intends to start with the connotation of extorting confessions by torture in the existing criminal procedure law of our country, through expounding the legal provisions of the revised criminal procedure law on the connotation of extorting confessions by torture and the proper connotation of extorting confessions by torture in judicial practice. In order to make a new definition of the connotation of extorting confessions by torture. Then, proceeding from the current judicial situation of preventing confessions by torture in our country, through the revision of the Criminal procedure Law, the author puts forward some new highlights on the preventive measures of extorting confessions by torture, including strengthening the consciousness of human rights protection, and formulating the court investigation procedure of legalizing court evidence. It formally establishes the principle of evidence adjudication, increases the degree of judicial openness, strengthens the legal supervision, and finds the legal basis for the prevention of extorting confessions by torture. However, the preventive measures of extorting confessions by torture stipulated by law have some shortcomings in the course of judicial practice, which is obvious. Therefore, the author combines his own actual feelings in handling cases. From three aspects, the author points out the shortcomings of the preventive measures of extorting confessions by torture in the judicial application, so the author puts forward a series of perfect suggestions on preventing confessions by torture, which are expected to provide some useful references for the prevention of extorting confessions by torture. With the development of the legal system, it can prevent and stop the extortion of confessions by torture, and better protect the legal rights and interests of the defendants.
【学位授予单位】：吉林大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D925.2
本文编号：2250957
[Abstract]:In recent years, following the cases of she Xianglin, Zhao Zuohai and Li Jiuming, the problem of extorting confessions by torture has attracted more and more attention from all walks of life, especially in the legal academic circles and judicial practice, and their opinions on how to prevent extorting confessions by torture are not consistent. Extorting confessions by torture has always been prohibited in criminal judicial practice. How to prevent and stop extorting confessions by torture has become an urgent problem to be solved in criminal proceedings, and it has also posed a new challenge to the criminal procedure system in our country. The newly amended Criminal procedure Law has made major changes to the criminal evidence system. Having absorbed the relevant contents of the provisions on the exclusion of certain questions of illegal evidence in Criminal cases and the provisions on examination and judgment of certain questions of evidence in handling death penalty cases, The rule of exclusion of illegal evidence with the characteristics of criminal justice is established in our country, and the provisions of the rule of exclusion of illegal evidence about extorting confessions by torture are undoubtedly the most important. Also become the criminal procedure law after the implementation of the main process aimed at and applicable provisions. It can be said that these provisions after the revision of the Criminal procedure Law play a positive and far-reaching role in restricting the practice of extorting confessions by torture in the field of criminal proceedings. However, due to the rough legal provisions of illegal evidence exclusion such as extorting confessions by torture and the lack of relevant supporting legal norms and other factors, academia and judicial practice have questioned the maneuverability of preventing torture in criminal judicial practice. It leaves room for the application of the illegal evidence obtained by torture, and the illegal evidence obtained by torture can not be excluded in judicial practice. It also makes the prevention measures of extorting confessions by torture not fully implemented in judicial practice. Therefore, the author intends to start with the connotation of extorting confessions by torture in the existing criminal procedure law of our country, through expounding the legal provisions of the revised criminal procedure law on the connotation of extorting confessions by torture and the proper connotation of extorting confessions by torture in judicial practice. In order to make a new definition of the connotation of extorting confessions by torture. Then, proceeding from the current judicial situation of preventing confessions by torture in our country, through the revision of the Criminal procedure Law, the author puts forward some new highlights on the preventive measures of extorting confessions by torture, including strengthening the consciousness of human rights protection, and formulating the court investigation procedure of legalizing court evidence. It formally establishes the principle of evidence adjudication, increases the degree of judicial openness, strengthens the legal supervision, and finds the legal basis for the prevention of extorting confessions by torture. However, the preventive measures of extorting confessions by torture stipulated by law have some shortcomings in the course of judicial practice, which is obvious. Therefore, the author combines his own actual feelings in handling cases. From three aspects, the author points out the shortcomings of the preventive measures of extorting confessions by torture in the judicial application, so the author puts forward a series of perfect suggestions on preventing confessions by torture, which are expected to provide some useful references for the prevention of extorting confessions by torture. With the development of the legal system, it can prevent and stop the extortion of confessions by torture, and better protect the legal rights and interests of the defendants.
【学位授予单位】：吉林大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D925.2
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