侦查实验笔录的证据能力问题研究
发布时间：2018-10-17 09:39
【摘要】：侦查实验笔录的证据特性是由侦查实验本身的特点所决定,对侦查实验笔录及其证据能力的研究必须以对侦查实验的全面讨论为前提。首先从侦查实验和侦查实验笔录的基本理论出发,学理上对侦查实验在不同表述并无本质分歧,都表达了侦查实验“参照重演”的特征。从侦查实验的主体、侦查实验的研究方法、侦查实验的目的、侦查实验的参照条件等方面,可以对侦查实验的概念作出界定。侦查实验就是指侦查实验主体在侦查活动中按照科学的原理和方法参照案件原有条件基础上所设计、实施的重演模拟实验,是一种旨在查明与案件有关的事实、发生的可能性或其状态、过程、结果的法科学活动。古今中外,侦查实验作为—种侦查措施和证据调查方法,在司法实践中得到不同程度的应用。而侦查实验笔录就是在侦查实验基础上制作的描述侦查实验过程与结果的客观记录,这意味着侦查实验是侦查实验笔录的前提和基础,因此侦查实验对于侦查实验笔录的重要性不言而喻。 纵向观察我国各历史时期关于侦查实验笔录的历史记载、理论研究、立法规定、发展历程,侦查实验笔录一度被归于勘验检查笔录之下有其深厚的历史原因。而侦查实验与勘验检查、侦查实验笔录与勘验检查笔录毕竟存在很大不同,基于确立侦查实验笔录证据合法性的迫切需要,侦查实验笔录得以在刑事诉讼法再修改后从勘验检查笔录中分化而出。立法上,侦查实验笔录的证据能力得到了确认；学理上,宏观上的侦查实验笔录符合证据能力的客观性、关联性、合法性的判断标准,具备成为证据的资格,而如果微观上侦查实验笔录欠缺客观性、关联性、合法性则可能失去证据资格。欠缺客观性主要从侦查实验过程欠缺客观性和侦查实验笔录未与侦查实验客观对应来考量,欠缺关联性指的是侦查实验欠缺形式关联性,欠缺合法性则从非法证据排除规则检视侦查实验笔录的证据资格。侦查实验笔录证据能力的欠缺,很大程度上源于侦查实验中出现的问题,由此可以进一步理解侦查实验程序对于侦查实验笔录证据能力形成的重要意义。 司法实践中,侦查实验的准备阶段、实施阶段以及侦查实验笔录的制作、保管中,分别存在的影响侦查实验笔录证据能力的因素,这些因素也是在审查侦查实验笔录证据能力时的关注要点。在参考国外立法,结合我国具体实践的基础上,解决我国侦查实验的准备阶段侦查实验主体、侦查实验方案设计、侦查实验技术设备、侦查实验的审批中可能影响侦查实验的因素,建立侦查实验在实施阶段所要遵循的原则以避免侦查风险对实验结果的影响,注意侦查实验笔录的制作、保管阶段可能发生的问题,从而保证侦查实验笔录的证据资格,确保侦查实验笔录证据价值的发挥。 最后,侦查实验笔录与相关证据种类存在联系与区别,主要依照形成时间的不同,区别于书证、物证、视听资料等形成于诉讼活动开始前的证据；主要依照取证手段的不同,又区别于证人证言、鉴定意见以及其他笔录类证据等不以模拟实验为前提而形成的证据。
[Abstract]:The evidence characteristic of the record of investigation experiment is determined by the characteristics of the investigation experiment itself, and the investigation of the investigative record and its evidence ability must be based on the comprehensive discussion of the investigation experiment. First of all, based on the basic theory of investigation experiment and investigation experiment record, we have expressed the investigation experiment on different expressions and non-essential differences in the investigation experiment. "Repetition" and features of the present invention. From the subject of investigation experiment, the research method of investigation experiment, the purpose of investigation experiment, the reference condition of investigation experiment and so on, the concept of investigation experiment can be defined. The investigation experiment refers to the fact that the investigation experiment subject is designed and implemented on the basis of the original condition of the case according to the principle and method of science in the investigation activity, and it is a kind of process which aims at ascertaining the facts related to the case, the possibility of occurrence or the state and the process, The result is scientific activity. In the past and abroad, the investigation experiment was used as the investigative measure and the evidence investigation method, which was applied to different degree in judicial practice. The investigation experiment record is the objective record of the investigation experiment process and the result made on the basis of the investigation experiment, which means that the investigation experiment is the premise and the basis of the investigation and experiment record, so the significance of the investigation experiment on the investigation experiment record is self-evident. Longitudinal observation of the historical records, theoretical research, legislative regulation and development course of the record of investigation and experiment in various historical periods of our country, and the record of investigation and experiment was once attributed to the record of examination and inspection, and has its profound history. On the basis of the urgent need to establish the validity of the evidence of investigation and experiment, the record of investigation and experiment can be differentiated from the record of examination and inspection after the revision of the Criminal Procedure Law. On the other hand, the evidence ability of the record of investigation and experiment is confirmed; on the other hand, the record of investigation and experiment on the macro level accords with the criterion of objectivity, relevance and legality of the evidence ability, and has the qualification to be the evidence, but if the micro-investigation experiment record is missing, The view, the relevance, the legitimacy may lose the evidence The lack of objectivity mainly depends on the lack of objectivity in the process of investigation and the fact that the record of investigation and experiment is not objectively corresponding to the investigation experiment. The lack of relevance refers to the lack of form of the investigation experiment, and the lack of validity examines the evidence of the investigation of the investigation experiment from the rule of exclusion of the illegal evidence. The lack of evidence ability of the investigation and experiment record is mainly due to the problems appearing in the investigation experiment, which can further understand the importance of the investigation experiment procedure to the formation of the evidence ability of the investigation experiment record. Significance. In the judicial practice, the preparation stage, the implementation stage of the investigation experiment and the making and keeping of the investigation and experiment record, the factors which influence the ability of the investigation and experiment record, these factors are also in the examination of the documentary evidence ability of the investigation experiment. On the basis of reference to foreign legislation and combining with the concrete practice of our country, we can solve the investigation and experiment subject, the design of investigation experiment, the technical equipment of investigation, the examination and approval of investigation experiment, which may affect the investigation. The factors of the experiment are to set up the principles to be followed in the implementation phase of the investigation experiment, so as to avoid the influence of the investigation risk on the experimental results, pay attention to the problems that may occur during the preparation and safekeeping stage of the investigation and experiment record, thus ensuring the evidence qualification of the investigation record, and ensuring the evidence of the investigation and experiment record. In the end, the records of investigation and experiment are related and different from the kinds of relevant evidence, mainly according to the difference of the forming time, the difference between the documentary evidence, the material evidence, the audio-visual material and so on are formed in the evidence before the commencement of the lawsuit activity; mainly according to the difference of the evidence obtaining means, It is also distinguished from the testimony of the witness, the opinion of the identification, and the evidence of other written records.
【学位授予单位】：安徽大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D925.2
本文编号：2276260
[Abstract]:The evidence characteristic of the record of investigation experiment is determined by the characteristics of the investigation experiment itself, and the investigation of the investigative record and its evidence ability must be based on the comprehensive discussion of the investigation experiment. First of all, based on the basic theory of investigation experiment and investigation experiment record, we have expressed the investigation experiment on different expressions and non-essential differences in the investigation experiment. "Repetition" and features of the present invention. From the subject of investigation experiment, the research method of investigation experiment, the purpose of investigation experiment, the reference condition of investigation experiment and so on, the concept of investigation experiment can be defined. The investigation experiment refers to the fact that the investigation experiment subject is designed and implemented on the basis of the original condition of the case according to the principle and method of science in the investigation activity, and it is a kind of process which aims at ascertaining the facts related to the case, the possibility of occurrence or the state and the process, The result is scientific activity. In the past and abroad, the investigation experiment was used as the investigative measure and the evidence investigation method, which was applied to different degree in judicial practice. The investigation experiment record is the objective record of the investigation experiment process and the result made on the basis of the investigation experiment, which means that the investigation experiment is the premise and the basis of the investigation and experiment record, so the significance of the investigation experiment on the investigation experiment record is self-evident. Longitudinal observation of the historical records, theoretical research, legislative regulation and development course of the record of investigation and experiment in various historical periods of our country, and the record of investigation and experiment was once attributed to the record of examination and inspection, and has its profound history. On the basis of the urgent need to establish the validity of the evidence of investigation and experiment, the record of investigation and experiment can be differentiated from the record of examination and inspection after the revision of the Criminal Procedure Law. On the other hand, the evidence ability of the record of investigation and experiment is confirmed; on the other hand, the record of investigation and experiment on the macro level accords with the criterion of objectivity, relevance and legality of the evidence ability, and has the qualification to be the evidence, but if the micro-investigation experiment record is missing, The view, the relevance, the legitimacy may lose the evidence The lack of objectivity mainly depends on the lack of objectivity in the process of investigation and the fact that the record of investigation and experiment is not objectively corresponding to the investigation experiment. The lack of relevance refers to the lack of form of the investigation experiment, and the lack of validity examines the evidence of the investigation of the investigation experiment from the rule of exclusion of the illegal evidence. The lack of evidence ability of the investigation and experiment record is mainly due to the problems appearing in the investigation experiment, which can further understand the importance of the investigation experiment procedure to the formation of the evidence ability of the investigation experiment record. Significance. In the judicial practice, the preparation stage, the implementation stage of the investigation experiment and the making and keeping of the investigation and experiment record, the factors which influence the ability of the investigation and experiment record, these factors are also in the examination of the documentary evidence ability of the investigation experiment. On the basis of reference to foreign legislation and combining with the concrete practice of our country, we can solve the investigation and experiment subject, the design of investigation experiment, the technical equipment of investigation, the examination and approval of investigation experiment, which may affect the investigation. The factors of the experiment are to set up the principles to be followed in the implementation phase of the investigation experiment, so as to avoid the influence of the investigation risk on the experimental results, pay attention to the problems that may occur during the preparation and safekeeping stage of the investigation and experiment record, thus ensuring the evidence qualification of the investigation record, and ensuring the evidence of the investigation and experiment record. In the end, the records of investigation and experiment are related and different from the kinds of relevant evidence, mainly according to the difference of the forming time, the difference between the documentary evidence, the material evidence, the audio-visual material and so on are formed in the evidence before the commencement of the lawsuit activity; mainly according to the difference of the evidence obtaining means, It is also distinguished from the testimony of the witness, the opinion of the identification, and the evidence of other written records.
【学位授予单位】：安徽大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D925.2
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