未成年人附条件不起诉制度探究
发布时间：2018-11-04 16:10
【摘要】：2012年3月14日全国人大通过了《刑事诉讼法》修正案,未成年案件刑事案件诉讼程序再次受到社会各界的关注,在新《刑事诉讼法》的过程中笔者注意到本次新《刑事诉讼法》中新增加一编,作为第五编：“特别程序”,第一章专门规定了未成年人刑事案件诉讼程序。使未成年案件刑事案件诉讼程序更加适应少年司法实践发展的需求,但是翻阅国外相关立法文件却发现国外对于附条件不起诉的规定仍有许多值得我们借鉴的地方。本文以未成年人不起诉制度为研究对象,通过分析新法立意,借鉴国外做法,剖析国内现状和不足,提出完善我国未成年人附条件不起诉制度的建议。本文首先介绍未成年人附条件不起诉的制度渊源,由于附条件不起诉制度源于国外,便对德国附条件不起诉制度、日本暂缓起诉制度、美国延缓起诉制度做简单介绍,以开宗明义。接着对我国未成年人附条件不起诉的概念进行确定,进而分析未成年人附条件不起诉作为新生不起诉家族成员的特点,提出其存在并立法化的原因和意义。分析未成年人附条件不起诉制度对于教育、感化、挽救未成年犯罪嫌疑人,优化司法资源配置,检察机关充分行使起诉裁量权等的作用,为之后的研究打下理论基础。接着分别从立法和实践两方面阐述我国未成年人附条件不起诉制度的现状,我国未成年人附条件不起诉实践活动丰富活跃,且实践先于立法,有一定经验,但是立法层面尚缺失完整统一具有可行性的体系,造成相关机关职责不明,实践工作良莠不齐。笔者特别选取的各地做法和典型案例透视出国内未成年人附条件不起诉制度在实践中的成功和不足之处,通过与国外先进做法的对比提出亟待完善的几个方面。最后在前两章论述的基础上,综合国内外理论实践经验提出一些完善我国未成年人附条件不起诉制度的建议。首先总结三大通用原则,即公益性、预防性、个别化,接着阐明主要通过明晰调查评估机构使其专门化专业化；确定附加义务,除了法定的硬性义务外,提出必要性义务和选择性义务；健全考察帮教体制,订制统一兼容个性的回归课程,宽严相继,惩教结合；完善监督体系,确保公信力。
[Abstract]:On March 14, 2012, the National people's Congress adopted amendments to the Code of Criminal procedure, which once again attracted the attention of all sectors of society. In the process of the new Criminal procedure Law, the author noticed that a new part was added in the new Criminal procedure Law, as the fifth part: "Special procedure", the first chapter specifies the procedure of criminal cases for minors. To make the criminal proceedings of juvenile cases more suitable for the development of juvenile justice practice needs, but looking through the relevant foreign legislative documents found that there are still many foreign conditions for non-prosecution of the provisions of reference. This article takes the minor non-prosecution system as the research object, through the analysis new law idea, draws lessons from the foreign practice, analyzes the domestic present situation and the insufficiency, proposed the consummation our country minor attached condition not to sue the system the proposal. This paper first introduces the origin of the system of conditional non-prosecution of minors. Because the system of conditional non-prosecution originates from abroad, it introduces briefly the system of conditional non-prosecution in Germany, the system of deferred prosecution in Japan and the system of deferred prosecution in the United States. To begin with. Then the concept of conditional non-prosecution of minors in our country is determined, and the characteristics of non-prosecution of minors as members of newborn non-prosecution family are analyzed, and the reasons and significance of their existence and legislation are put forward. This paper analyzes the role of the system of conditional non-prosecution of minors in education, probation, saving juvenile criminal suspects, optimizing the allocation of judicial resources, and the procuratorial organs fully exercising the prosecutorial discretion, which lays a theoretical foundation for the later research. Then, from the aspects of legislation and practice, this paper expounds the current situation of the system of non-prosecution of minors in our country. The practice of conditional non-prosecution of minors in our country is rich and active, and the practice precedes the legislation, so it has certain experience. However, there is still a lack of a complete, unified and feasible system at the legislative level, which results in unclear responsibilities of relevant organs and mixed practice. The author chooses the local practice and the typical case to see the success and the deficiency in the practice of the system of conditional non-prosecution of the minors in our country, and puts forward several aspects that need to be perfected through the comparison with the advanced practices of the foreign countries. Finally, on the basis of the first two chapters, the author puts forward some suggestions on how to perfect the system of non-prosecution of minors in our country based on the theoretical and practical experience at home and abroad. Firstly, it summarizes three general principles, that is, public welfare, prevention, individualization, and then clarifies that specialization is mainly made through clear investigation and evaluation institutions. In addition to the mandatory obligation, we should put forward the necessity obligation and the selective obligation, perfect the system of help and education, order the unified and compatible return curriculum, combine the wide and strict, and the correctional system; Improve the supervision system to ensure public trust.
【学位授予单位】：福州大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D925.2;D669.5
本文编号：2310389
[Abstract]:On March 14, 2012, the National people's Congress adopted amendments to the Code of Criminal procedure, which once again attracted the attention of all sectors of society. In the process of the new Criminal procedure Law, the author noticed that a new part was added in the new Criminal procedure Law, as the fifth part: "Special procedure", the first chapter specifies the procedure of criminal cases for minors. To make the criminal proceedings of juvenile cases more suitable for the development of juvenile justice practice needs, but looking through the relevant foreign legislative documents found that there are still many foreign conditions for non-prosecution of the provisions of reference. This article takes the minor non-prosecution system as the research object, through the analysis new law idea, draws lessons from the foreign practice, analyzes the domestic present situation and the insufficiency, proposed the consummation our country minor attached condition not to sue the system the proposal. This paper first introduces the origin of the system of conditional non-prosecution of minors. Because the system of conditional non-prosecution originates from abroad, it introduces briefly the system of conditional non-prosecution in Germany, the system of deferred prosecution in Japan and the system of deferred prosecution in the United States. To begin with. Then the concept of conditional non-prosecution of minors in our country is determined, and the characteristics of non-prosecution of minors as members of newborn non-prosecution family are analyzed, and the reasons and significance of their existence and legislation are put forward. This paper analyzes the role of the system of conditional non-prosecution of minors in education, probation, saving juvenile criminal suspects, optimizing the allocation of judicial resources, and the procuratorial organs fully exercising the prosecutorial discretion, which lays a theoretical foundation for the later research. Then, from the aspects of legislation and practice, this paper expounds the current situation of the system of non-prosecution of minors in our country. The practice of conditional non-prosecution of minors in our country is rich and active, and the practice precedes the legislation, so it has certain experience. However, there is still a lack of a complete, unified and feasible system at the legislative level, which results in unclear responsibilities of relevant organs and mixed practice. The author chooses the local practice and the typical case to see the success and the deficiency in the practice of the system of conditional non-prosecution of the minors in our country, and puts forward several aspects that need to be perfected through the comparison with the advanced practices of the foreign countries. Finally, on the basis of the first two chapters, the author puts forward some suggestions on how to perfect the system of non-prosecution of minors in our country based on the theoretical and practical experience at home and abroad. Firstly, it summarizes three general principles, that is, public welfare, prevention, individualization, and then clarifies that specialization is mainly made through clear investigation and evaluation institutions. In addition to the mandatory obligation, we should put forward the necessity obligation and the selective obligation, perfect the system of help and education, order the unified and compatible return curriculum, combine the wide and strict, and the correctional system; Improve the supervision system to ensure public trust.
【学位授予单位】：福州大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D925.2;D669.5
【参考文献】
相关期刊论文 前1条
1 樊崇义;;制度创新 理念先行——刑事诉讼法修改中的几个检察理论问题[J];人民检察;2006年01期
，本文编号：2310389
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