我国刑事诉讼“交叉询问”构建研究
发布时间：2018-10-18 20:26
【摘要】：交叉询问作为发现真实,保障人权的证据调查规则,在刑事诉讼程序运行的过程中对司法公正及公信力有着极其关键的作用。但是,我国刑事诉讼“交叉询问”的构建长期受侦查中心主义以及职权主义诉讼模式的影响,控辩双方的对抗性不是太明显,立法对具体的交叉询问规则如诱导性询问、禁止性询问,以及交叉询问的对象、顺序和交叉询问中法官的角色定位等未作出明确的规定,导致司法实务的运行也不太规范。因此,在以审判为中心的刑事司法改革背景下,作为庭审实质化的运行规则之一的刑事诉讼“交叉询问”应当在我国当前改良式的当事人主义诉讼模式的框架下进行构建。在其具体的运行构成方面,包括其规则、对象、顺序构建等,借鉴美国交叉询问制度、德国轮替询问制度以及我国台湾地区交互诘问制度的长处,并与我国的制度、政策、文化背景相结合,为我国构建“交叉询问”在推动庭审实质化方面提供完善建议。本文采用比较研究、文献研究、理论与实务相结合的研究方法,分为五部分对交叉询问进行论述,其中:第一部分是引言。主要分析了本文对我国刑事诉讼“交叉询问”构建进行研究的背景与目的,并通过综述国内外研究概况,指出以往的交叉询问研究存在的不足,为本文的论述进行铺垫。第二部分是交叉询问的理论概述。从理论基础的角度,对刑事诉讼交叉询问的涵义、概念解析、设计理念、原则和实践效用进行了论述,指出交叉询问是以人权保障,尤其是保障被告人质证权,以及诉讼参与为设计理念,以直接言词审理和证据裁判主义为原则,其实践效用不仅有利于发现案件真实,而且能够保障程序正义和提升司法公信力。第三部分是美国、德国和我国台湾地区交叉询问的考察与借鉴。以比较研究的角度,考察了美国交叉询问、德国轮替询问和我国台湾地区的交互诘问的立法构建与特点,并就这些国家和地区对我国交叉询问构建与完善的可借鉴之处作了相应的分析。第四部分是我国刑事诉讼“交叉询问”的考察、存在的问题。通过对我国刑事诉讼“交叉询问”的历史发展和现状的考察,指出了我国目前“交叉询问”的构建在对象、顺序、规则等法律规范方面存在的不足。第五部分是我国刑事诉讼“交叉询问”构建的设想建议。针对本文第四部分所指出的问题,借鉴第三部分中所考察的国家和地区的理论及立法,首先对本文所构建的“交叉询问”进行了介绍,然后从证人出庭制度和交叉询问的对象、顺序、规则构建和完善方面进行了论述,指出我国刑事诉讼构建“交叉询问”对象应包含被告人和被害人,并应通过立法明确被害人为控方证人。在规则的完善方面,应当明确诱导性询问规则、误导性规则的适用,并对法官在交叉询问中的角色地位予以明确,以期推动我国刑事诉讼“交叉询问”的顺利开展。
[Abstract]:Cross-examination, as a rule of discovery of truth and protection of human rights, plays an extremely important role in judicial justice and credibility in the course of criminal procedure. However, the construction of "cross-questioning" in criminal proceedings in our country has long been affected by investigative centrism and the mode of action of power doctrine, the antagonism between the prosecution and the defense is not obvious, and the specific cross-examination rules, such as inductive interrogation, are not obvious in the legislation. The prohibited questioning, the object of cross-questioning, the order and the role of judges in cross-questioning are not clearly defined, which leads to the operation of judicial practice is not very standard. Therefore, under the background of the criminal judicial reform centered on trial, the "cross-inquiry" of criminal procedure, as one of the substantive operating rules of the trial, should be constructed under the framework of the current improved litigant litigation mode in our country. In terms of its specific operation composition, including its rules, objects, sequential construction, and so on, drawing lessons from the American cross-examination system, the German alternate interrogation system and the strong points of China's Taiwan cross-examination system, and with the system and policy of our country, The combination of cultural background provides perfect suggestions for the construction of cross-inquiry in promoting the materialization of trial. This paper uses comparative research, literature research, theoretical and practical research methods, divided into five parts to discuss the cross-examination, among which: the first part is the introduction. This paper mainly analyzes the background and purpose of the research on the construction of "cross-questioning" in criminal proceedings in China, and points out the shortcomings of the previous cross-examination studies by summarizing the research situation at home and abroad, thus paving the way for the discussion in this paper. The second part is the theoretical overview of cross-examination. From the angle of theoretical basis, this paper discusses the meaning, concept analysis, design idea, principle and practical utility of cross-examination in criminal proceedings, and points out that cross-questioning is guaranteed by human rights, especially the right of cross-examination of defendants. As well as litigation participation as the design concept, the principle of direct speech trial and evidentiary adjudication, its practical utility is not only conducive to finding the case true, but also can ensure procedural justice and enhance the credibility of the judiciary. The third part is the investigation and reference of cross-inquiry between America, Germany and Taiwan. From the perspective of comparative research, this paper examines the legislative construction and characteristics of cross-questioning in the United States, alternate questioning in Germany and cross-questioning in Taiwan. This paper also analyzes the construction and perfection of cross-inquiry in these countries and regions. The fourth part is the investigation of cross-inquiry in criminal procedure in China. Based on the investigation of the historical development and present situation of "cross-inquiry" in criminal proceedings in China, this paper points out the shortcomings of the construction of cross-inquiry in the aspects of object, order, rule and other legal norms. The fifth part is the tentative suggestions on the construction of cross-inquiry in criminal procedure in China. In view of the problems pointed out in the fourth part of this paper, using the theory and legislation of the countries and regions examined in the third part as reference, this paper first introduces the "cross-examination" constructed in this paper, and then introduces the system of witnesses appearing in court and the object of cross-examination. This paper discusses on the construction and perfection of the order, rules and regulations, and points out that the object of cross-examination should include the defendant and the victim, and that the victim should be defined as the prosecution witness through legislation. As for the perfection of the rules, the rules of inductive questioning and the application of misleading rules should be made clear, and the role of judges in cross-examination should be clarified in order to promote the smooth development of cross-examination in criminal proceedings in China.
【学位授予单位】：四川师范大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D925.2
本文编号：2280275
[Abstract]:Cross-examination, as a rule of discovery of truth and protection of human rights, plays an extremely important role in judicial justice and credibility in the course of criminal procedure. However, the construction of "cross-questioning" in criminal proceedings in our country has long been affected by investigative centrism and the mode of action of power doctrine, the antagonism between the prosecution and the defense is not obvious, and the specific cross-examination rules, such as inductive interrogation, are not obvious in the legislation. The prohibited questioning, the object of cross-questioning, the order and the role of judges in cross-questioning are not clearly defined, which leads to the operation of judicial practice is not very standard. Therefore, under the background of the criminal judicial reform centered on trial, the "cross-inquiry" of criminal procedure, as one of the substantive operating rules of the trial, should be constructed under the framework of the current improved litigant litigation mode in our country. In terms of its specific operation composition, including its rules, objects, sequential construction, and so on, drawing lessons from the American cross-examination system, the German alternate interrogation system and the strong points of China's Taiwan cross-examination system, and with the system and policy of our country, The combination of cultural background provides perfect suggestions for the construction of cross-inquiry in promoting the materialization of trial. This paper uses comparative research, literature research, theoretical and practical research methods, divided into five parts to discuss the cross-examination, among which: the first part is the introduction. This paper mainly analyzes the background and purpose of the research on the construction of "cross-questioning" in criminal proceedings in China, and points out the shortcomings of the previous cross-examination studies by summarizing the research situation at home and abroad, thus paving the way for the discussion in this paper. The second part is the theoretical overview of cross-examination. From the angle of theoretical basis, this paper discusses the meaning, concept analysis, design idea, principle and practical utility of cross-examination in criminal proceedings, and points out that cross-questioning is guaranteed by human rights, especially the right of cross-examination of defendants. As well as litigation participation as the design concept, the principle of direct speech trial and evidentiary adjudication, its practical utility is not only conducive to finding the case true, but also can ensure procedural justice and enhance the credibility of the judiciary. The third part is the investigation and reference of cross-inquiry between America, Germany and Taiwan. From the perspective of comparative research, this paper examines the legislative construction and characteristics of cross-questioning in the United States, alternate questioning in Germany and cross-questioning in Taiwan. This paper also analyzes the construction and perfection of cross-inquiry in these countries and regions. The fourth part is the investigation of cross-inquiry in criminal procedure in China. Based on the investigation of the historical development and present situation of "cross-inquiry" in criminal proceedings in China, this paper points out the shortcomings of the construction of cross-inquiry in the aspects of object, order, rule and other legal norms. The fifth part is the tentative suggestions on the construction of cross-inquiry in criminal procedure in China. In view of the problems pointed out in the fourth part of this paper, using the theory and legislation of the countries and regions examined in the third part as reference, this paper first introduces the "cross-examination" constructed in this paper, and then introduces the system of witnesses appearing in court and the object of cross-examination. This paper discusses on the construction and perfection of the order, rules and regulations, and points out that the object of cross-examination should include the defendant and the victim, and that the victim should be defined as the prosecution witness through legislation. As for the perfection of the rules, the rules of inductive questioning and the application of misleading rules should be made clear, and the role of judges in cross-examination should be clarified in order to promote the smooth development of cross-examination in criminal proceedings in China.
【学位授予单位】：四川师范大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D925.2
【参考文献】
相关重要报纸文章 前1条
1 樊崇义;;“以审判为中心”的概念、目标和实现路径[N];人民法院报;2015年
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