论我国公诉转自诉制度的完善
发布时间：2018-10-17 07:08
【摘要】："公诉转自诉制度"是我国刑事诉讼法中的一项特色制度,该制度是指公安机关对犯罪嫌疑人不予追究刑事责任或检察机关对其作出不起诉决定后,被害人可以在法定期间内向上一级检察机关申诉,请求提起公诉,或者不经申诉而直接向人民法院提起诉讼。该制度弥补了不起诉制度的缺陷,在一定程度上实现了对刑事被害人的权益进行救济以及对公诉权的滥用加以有效约束的立法目的。但是,任何一项制度的设立都有其不完美的地方,公诉转自诉制度亦存在着立法理论和司法实践方面的缺陷。诸如:法条冲突,起诉期限不明确,被害人举证门槛高不利于实现权利救济,公诉权监督的缺失等等。学术界、司法界也从未停止过对该制度的探析,一部分学者主张仿照德国和日本的制度,实行强制起诉制度或者刑事被害人司法审查制度,从而废除我国的公诉转自诉制度;另一部分则坚持实行公诉转自诉制度,认为可以借鉴德日类似制度的合理之处,并对我国的公诉转自诉制度加以合理改造。笔者认为公诉转自诉制度在我国仍然有继续实施的必要性。我们应当扬长避短,既要肯定该制度的积极价值,又不得不分析该制度中一系列问题存在的根源,在借鉴国外类似制度的基础上结合我国实际,设置具体可行的制度来不断完善我国的公诉转自诉制度。本文试从四个部分来论述公诉转自诉制度:第一部分解释说明基本概念和价值定位;第二部分分析国外类似制度对我国的借鉴意义;第三部分探讨公诉转自诉制度适用的问题及成因;第四部分提出完善该制度的具体构想。
[Abstract]:"Public prosecution to private prosecution" is a characteristic system in our country's criminal procedure law. This system refers to the fact that the public security organs do not investigate the criminal responsibility of the criminal suspects or the procuratorial organs make a decision not to prosecute them. The victim may, within the statutory period, appeal to the procuratorial organ at the next higher level, request a public prosecution, or bring a suit directly to the people's court without appeal. The system makes up for the defects of the non-prosecution system, and to a certain extent realizes the legislative purpose of relief to the rights and interests of the criminal victims and the effective restriction of the abuse of the public prosecution right. However, the establishment of any system has its imperfections, the system of public prosecution to private prosecution also has legislative theory and judicial practice defects. Such as: conflict of law, unclear prosecution period, high threshold of proof is not conducive to the realization of the right of relief, the lack of supervision of the right of prosecution and so on. The academic and judicial circles have never stopped analyzing the system. Some scholars advocate to follow the system of Germany and Japan and implement the system of compulsory prosecution or judicial review of criminal victims, so as to abolish the system of public prosecution to private prosecution in our country. The other part insists on carrying out the system of public prosecution to private prosecution, and thinks that we can learn from the rationality of similar system of Germany and Japan, and reform the system of public prosecution to private prosecution reasonably. The author believes that the system of public prosecution to private prosecution in our country still has the necessity to continue to implement. We should not only affirm the positive value of the system, but also analyze the root causes of a series of problems in the system, and combine the reality of our country on the basis of drawing lessons from similar systems abroad. Set up specific and feasible system to improve the system of public prosecution to private prosecution. This article tries to discuss the system of public prosecution to private prosecution from four parts: the first part explains the basic concept and value orientation, the second part analyzes the reference significance of similar foreign system to our country. The third part discusses the problems and causes of the application of the system of public prosecution to private prosecution, and the fourth part puts forward the concrete idea of perfecting the system.
【学位授予单位】：海南大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D925.2
本文编号：2275919
[Abstract]:"Public prosecution to private prosecution" is a characteristic system in our country's criminal procedure law. This system refers to the fact that the public security organs do not investigate the criminal responsibility of the criminal suspects or the procuratorial organs make a decision not to prosecute them. The victim may, within the statutory period, appeal to the procuratorial organ at the next higher level, request a public prosecution, or bring a suit directly to the people's court without appeal. The system makes up for the defects of the non-prosecution system, and to a certain extent realizes the legislative purpose of relief to the rights and interests of the criminal victims and the effective restriction of the abuse of the public prosecution right. However, the establishment of any system has its imperfections, the system of public prosecution to private prosecution also has legislative theory and judicial practice defects. Such as: conflict of law, unclear prosecution period, high threshold of proof is not conducive to the realization of the right of relief, the lack of supervision of the right of prosecution and so on. The academic and judicial circles have never stopped analyzing the system. Some scholars advocate to follow the system of Germany and Japan and implement the system of compulsory prosecution or judicial review of criminal victims, so as to abolish the system of public prosecution to private prosecution in our country. The other part insists on carrying out the system of public prosecution to private prosecution, and thinks that we can learn from the rationality of similar system of Germany and Japan, and reform the system of public prosecution to private prosecution reasonably. The author believes that the system of public prosecution to private prosecution in our country still has the necessity to continue to implement. We should not only affirm the positive value of the system, but also analyze the root causes of a series of problems in the system, and combine the reality of our country on the basis of drawing lessons from similar systems abroad. Set up specific and feasible system to improve the system of public prosecution to private prosecution. This article tries to discuss the system of public prosecution to private prosecution from four parts: the first part explains the basic concept and value orientation, the second part analyzes the reference significance of similar foreign system to our country. The third part discusses the problems and causes of the application of the system of public prosecution to private prosecution, and the fourth part puts forward the concrete idea of perfecting the system.
【学位授予单位】：海南大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D925.2
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