人权保障视野下的诱惑侦查
发布时间：2018-11-06 11:48
【摘要】：诱惑侦查的使用过程中,存在许多无法回避的问题。事物都有两面性。一方面,司法实践证明这是一种低成本、直接且有效的侦查手段,对刑事司法中控制犯罪目的的实现起了不可忽视的作用,另一方面,诱惑侦查存在不少弊端,尤为突出的是对人权构成的挑战与威胁,将诱惑侦查置于人权视野下进行审视,是刑事司法文明、民主、进步的必然要求。诱惑侦查与公民的许多权利存在冲突,较为突出的有人身自由权、隐私权、公正审判权,与财产权等也有一定冲突,寻求侦查需要与人权保障之间的平衡,是解决诱惑侦查与人权冲突的解决方法。联合国刑事司法准则追求的目标为实现司法公正、保障基本人权及控制犯罪增长、维护法治秩序,这两者之间有着相当的紧张关系,因此保持这两个目标之间的适度平衡是世界各国面临的挑战,但国际社会已经形成共识:不得以牺牲司法公正或威胁基本人权为代价来控制犯罪或建立秩序。我国刑事诉讼法的目的是实现犯罪控制与人权保障,这两个目标与联合国刑事司法准则的目标具有一致性,二者之间也同样存在着相当的矛盾。寻求二者的平衡,侦查需要与人权保障二者不可偏废,同为为了能够达到相对平衡,二者都需要作出一定牺牲和割让,两者之间的平衡不是固守与僵化的平衡,而是一种与时俱进的动态平衡,这样才能解决运用诱惑侦查手段过程的利益冲突问题。具体来讲,实现诱惑侦查制度化、法制化,对侦查权力进行约束就是在侦查程序中对人权进行保障的一种有效方式。我国现阶段诱惑侦查的立法现状仍无法给司法实践中的诱惑侦查提供可供操作的标准,在诱惑侦查的合法性标准上也没有统一的定论,而在对诱惑侦查的研究过程中,合法性判断始终是一个核心问题,各种不同的判断标准和方法,都有其合理性,综合考虑不同合法性标准的优缺点及我国司法现状,混合性标准显得更加公平合理。在完善诱惑侦查制度的具体路径设计上,从程序性控制出发,对诱惑侦查的主体、适用范围、使用对象、启动、审批、监督和行为限度等进行限定,这是诱惑侦查措施能够正确地在法律的规定下运转的前提;其次对于违法的诱惑侦查行为应当使用何种制裁措施,来实现对遭受违法诱惑侦查的当事人进行救济的目的,结合我国现有的制度及司法实践提出对于“犯意引诱型”的违法诱惑侦查行为,应当采取非法证据排除的程序性制裁,使审判不能建立在非法获得的证据之上;对于“犯意强化型”的诱惑侦查,则从量刑上来对被告人进行救济。
[Abstract]:There are many unavoidable problems in the use of enticement investigation. Everything has two sides. On the one hand, judicial practice has proved that this is a low-cost, direct and effective investigative means, which can not be ignored in the realization of the purpose of controlling crime in criminal justice. On the other hand, there are many drawbacks in enticing investigation. The challenge and threat to human rights is particularly prominent. It is the inevitable requirement of civilization, democracy and progress of criminal justice to examine the temptation investigation from the perspective of human rights. There are conflicts between enticement investigation and citizens' rights, such as the right to personal liberty, the right to privacy, the right to a fair trial, and the right to property, so the balance between the need for investigation and the protection of human rights is sought. It is a solution to the conflict between temptation detection and human rights. There is considerable tension between the objectives pursued by the United Nations guidelines on Criminal Justice to achieve justice, to guarantee basic human rights and to control the growth of crime and to maintain the rule of law and order, Maintaining an appropriate balance between these two goals is therefore a challenge for all countries in the world, but the international community has reached a consensus that crime should not be controlled or order established at the expense of judicial justice or threats to fundamental human rights. The purpose of our criminal procedure law is to realize crime control and human rights protection. These two objectives are consistent with the objectives of the United Nations criminal justice standards, and there are also considerable contradictions between them. Seeking a balance between the two, investigation needs and human rights protection can not be biased, both in order to achieve a relative balance, both need to make certain sacrifices and cession, the balance between the two is not a firm and rigid balance, It is a dynamic balance of keeping pace with the times, so as to solve the problem of conflict of interest in the process of using enticement investigative techniques. Concretely speaking, it is an effective way to guarantee human rights in the procedure of investigation by systematizing the enticement investigation, legalizing and restricting the investigation power. At the present stage, the legislative situation of temptation investigation in our country is still unable to provide an operational standard for the temptation investigation in judicial practice, and there is no unified conclusion on the legality standard of the temptation investigation, and in the course of the research on the temptation investigation, Legitimacy judgment is always a core problem, all kinds of judgment standards and methods have their rationality. Considering the advantages and disadvantages of different legitimacy standards and the current judicial situation of our country, the mixed standard is more fair and reasonable. In order to perfect the specific path design of the system of enticement investigation, proceeding from the procedural control, the subject, the scope of application, the object of use, the starting, the examination and approval, the supervision and the limit of behavior of the temptation investigation are limited. This is the premise that the measures of enticement investigation can work correctly under the provisions of the law; Secondly, what kind of sanctions should be used for the illegal enticement investigation to achieve the purpose of relief to the parties who suffer from the illegal temptation investigation, Combining with the existing system and judicial practice of our country, the author puts forward that the procedural sanction of illegal evidence exclusion should be adopted for the illegal temptation investigation of "criminal intent inducement", so that the trial cannot be established on the basis of illegally obtained evidence; As for the temptation investigation of "criminal intention strengthening", the defendant is relieved from sentencing.
【学位授予单位】：广州大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D925.2
本文编号：2314172
[Abstract]:There are many unavoidable problems in the use of enticement investigation. Everything has two sides. On the one hand, judicial practice has proved that this is a low-cost, direct and effective investigative means, which can not be ignored in the realization of the purpose of controlling crime in criminal justice. On the other hand, there are many drawbacks in enticing investigation. The challenge and threat to human rights is particularly prominent. It is the inevitable requirement of civilization, democracy and progress of criminal justice to examine the temptation investigation from the perspective of human rights. There are conflicts between enticement investigation and citizens' rights, such as the right to personal liberty, the right to privacy, the right to a fair trial, and the right to property, so the balance between the need for investigation and the protection of human rights is sought. It is a solution to the conflict between temptation detection and human rights. There is considerable tension between the objectives pursued by the United Nations guidelines on Criminal Justice to achieve justice, to guarantee basic human rights and to control the growth of crime and to maintain the rule of law and order, Maintaining an appropriate balance between these two goals is therefore a challenge for all countries in the world, but the international community has reached a consensus that crime should not be controlled or order established at the expense of judicial justice or threats to fundamental human rights. The purpose of our criminal procedure law is to realize crime control and human rights protection. These two objectives are consistent with the objectives of the United Nations criminal justice standards, and there are also considerable contradictions between them. Seeking a balance between the two, investigation needs and human rights protection can not be biased, both in order to achieve a relative balance, both need to make certain sacrifices and cession, the balance between the two is not a firm and rigid balance, It is a dynamic balance of keeping pace with the times, so as to solve the problem of conflict of interest in the process of using enticement investigative techniques. Concretely speaking, it is an effective way to guarantee human rights in the procedure of investigation by systematizing the enticement investigation, legalizing and restricting the investigation power. At the present stage, the legislative situation of temptation investigation in our country is still unable to provide an operational standard for the temptation investigation in judicial practice, and there is no unified conclusion on the legality standard of the temptation investigation, and in the course of the research on the temptation investigation, Legitimacy judgment is always a core problem, all kinds of judgment standards and methods have their rationality. Considering the advantages and disadvantages of different legitimacy standards and the current judicial situation of our country, the mixed standard is more fair and reasonable. In order to perfect the specific path design of the system of enticement investigation, proceeding from the procedural control, the subject, the scope of application, the object of use, the starting, the examination and approval, the supervision and the limit of behavior of the temptation investigation are limited. This is the premise that the measures of enticement investigation can work correctly under the provisions of the law; Secondly, what kind of sanctions should be used for the illegal enticement investigation to achieve the purpose of relief to the parties who suffer from the illegal temptation investigation, Combining with the existing system and judicial practice of our country, the author puts forward that the procedural sanction of illegal evidence exclusion should be adopted for the illegal temptation investigation of "criminal intent inducement", so that the trial cannot be established on the basis of illegally obtained evidence; As for the temptation investigation of "criminal intention strengthening", the defendant is relieved from sentencing.
【学位授予单位】：广州大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D925.2
【参考文献】
相关期刊论文 前10条
1 薛培;郑家明;;贩卖毒品案件中的诱惑侦查:默认现实抑或法律规制——以四川省成都市W区、X区及J县为研究样本[J];中国刑事法杂志;2012年03期
2 杨志刚;;论诱惑侦查的价值属性[J];社会科学研究;2011年05期
3 王彬;;冲突与平衡:诱惑侦查与人权保障的法律分析[J];河北法学;2006年05期
4 杨志刚;美国诱惑侦查法理的新近发展及启示[J];社会科学研究;2005年05期
5 陈学权;;程序法视野中的诱惑侦查[J];中国刑事法杂志;2004年02期
6 龙宗智;欺骗与刑事司法行为的道德界限[J];法学研究;2002年04期
7 吴丹红,孙孝福;论诱惑侦查[J];法商研究(中南政法学院学报);2001年04期
8 马滔;诱惑侦查之合法性分析[J];中国刑事法杂志;2000年05期
9 龙宗智;诱惑侦查合法性问题探析[J];人民司法;2000年05期
10 马跃;美、日有关诱惑侦查的法理及论争之概观[J];法学;1998年11期
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