最高人民法院巡回法庭行使死刑复核权研究

发布时间：2018-11-02 16:50

【摘要】：从2007年1月1日,最高人民法院正式收归死刑复核权,统一集中行使死刑复核权,迄今已逾十载。尽管这种模式在控制死刑适用人数、保障人权、促进刑事法治进步等方面成效斐然,但在死刑复核诉讼化改革上却迟迟没有进展。因此,以最高人民法院设立巡回法庭为契机,将死刑复核权交由最高人民法院巡回法庭行使,从而为我国死刑复核诉讼化改革提供新的路径。集中行使死刑复核权拥有深厚的历史渊源。从春秋战国一直到清末构成集中行使死刑复核权的古代法渊源。新民主主义革命时期奠定了集中复核的制度雏形。新中国成立后又经历了 "下放"与"上收"的曲折历程,最终在2007年正式确定了最高人民法院集中行使死刑复核权的格局,由而极大地推动了我国死刑制度和人权事业的进步。但最高人民法院集中行使死刑复核权也存在诸多弊端。首先,集中复核使得最高人民法院不堪重负,偏离了"精英化"的功能设定。其次,死刑复核程序的封闭性与审判中心主义改革的精神背道而驰。再次是涉死案件的进京上访,对最高人民法院带来了巨大的政治压力。最后是"流水作业"式的复核模式,忽视了个案的正义。因此,对这种模式的改革迫在眉睫。最高人民法院巡回法庭行使死刑复核权,并不只是简简单单的权力"下放",涉及对可行性和合法性的论证。从可行性上来说,最高人民法院巡回法庭在全国范围内的分布,打破了集中复核的"时空"限制,为其提供了有利的客观条件。从合法性来说,最高人民法院巡回法庭作为最高人民法院的派出机构,其法律地位及裁判效力与最高人民法院自身无异,因此其行使死刑复核权并不存在法律障碍。另外,独立的法律地位、精英化的人才团队,也是其得天独厚的优势。但也不能忽视由此带来的挑战,尤其对死刑适用标准的如何统一、地方势力对死刑复核的影响以及是否能够有效地缓解死刑案件进京上访的压力,这都是这项改革措施将要面临的困难。在巡回法庭行使死刑复核权的困难对策及制度构想方面。首先,将最高人民法院(本部)及其巡回法庭划分不同的死刑复核巡回区及案件类型。其次,在启动模式上仍以自动报核基础上,采取"人案同报"的方式,保障死刑被告人参与程序的权利。在复核组织上,增加合议庭的人数,进一步优化合议庭的办案模式。在复核方式上,推进死刑程序化改革,采取开庭和不开庭相结合的方式。再次,进一步明确死刑复核阶段辩护律师的法律地位,建立死刑复核阶段的指定辩护制度。最后,死刑案件"人命关天",在充分赋权于最高人民法院巡回法庭的同时,也要加强对最高人民法院巡回法庭全方位的监督。
[Abstract]:Since January 1, 2007, the Supreme people's Court has formally reinstated the right to review the death penalty and exercised the right to review the death penalty in a unified and centralized manner, for more than ten years. Although this model has achieved great results in controlling the number of people applying the death penalty, protecting human rights and promoting the progress of the criminal law, it has not made any progress in the reform of the death penalty review and litigation. Therefore, with the turning point of setting up the circuit court of the Supreme people's Court, the right to review the death penalty is transferred to the Circuit Court of the Supreme people's Court, thus providing a new path for the reform of the litigation of the death penalty review in our country. The centralized exercise of the right to review the death penalty has a profound historical origin. From the Spring and Autumn period to the late Qing Dynasty, it constituted the ancient legal origin of centralized exercise of the right to review the death penalty. During the new democratic revolution period, the system of centralized review was established. After the founding of New China, it experienced a tortuous course of "decentralization" and "receiving", and finally, in 2007, it formally established the pattern of centralized exercise of the right of death penalty review by the Supreme people's Court. This has greatly promoted the progress of the death penalty system and the cause of human rights in our country. However, the Supreme people's Court centralized exercise of the right of death penalty review also has many drawbacks. First, centralized review makes the Supreme people's Court overburdened and deviates from the "elite" function. Secondly, the closed nature of the death penalty review procedure runs counter to the spirit of the centrism reform. Again, the death-related cases came to Beijing, bringing great political pressure to the Supreme people's Court. Finally, the "flow-work" type of review model, ignoring the justice of the case. Therefore, the reform of this model is imminent. The exercise of the death penalty review by the Circuit Court of the Supreme people's Court is not only a simple "devolution" of power, but also a demonstration of feasibility and legality. From the feasibility point of view, the distribution of the circuit court of the Supreme people's Court in the whole country has broken the "time and space" limit of centralized review, and has provided favorable objective conditions for it. In terms of legality, as the agency of the Supreme people's Court, the Circuit Court of the Supreme people's Court has the same legal status and judicial effect as the Supreme people's Court itself, so there is no legal obstacle to its exercise of the right to review the death penalty. In addition, independent legal status, elite talent team, but also its unique advantage. However, we cannot ignore the challenges brought about by this, especially how to unify the standards for the application of the death penalty, the influence of local forces on the review of the death penalty and whether or not it can effectively alleviate the pressure of capital punishment cases coming to Beijing to petition. These are the difficulties that the reform will face. In the circuit court to exercise the right of death penalty review of the difficult countermeasures and system ideas. First, the Supreme people's Court and its circuit court are divided into different death penalty review circuit and case types. Secondly, on the basis of automatic reporting and verification, the right of the accused to participate in the procedure should be guaranteed. In the review organization, increase the number of collegiate panel, further optimize the collegial panel handling mode. In the way of review, we should promote the reform of death penalty procedure and adopt the combination of court session and non-court session. Thirdly, the legal status of defense counsel in death penalty review stage is further clarified, and the designated defense system in death penalty review stage is established. Finally, the death penalty cases "life is vital", not only fully empowered in the Supreme people's Court circuit court, but also to strengthen the Supreme people's Court circuit court all-round supervision.
【学位授予单位】：安徽大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D926.2

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