刑事拘留国家赔偿的制度漏洞与补正机制

发布时间：2018-11-07 12:47

【摘要】：侦查机关采取刑事拘留措施的合法职务行为,客观上无疑造成犯罪嫌疑人人身自由被实际剥夺的结果。但在后续的审判程序中,犯罪嫌疑人也有可能因事实不清、证据不足而被宣告无罪。一旦被告人被宣告无罪,也就意味着其先前遭受的人身自由被剥夺的事实需要在法律上作出弥补性回应。但司法实践中,侦查机关往往坚持认为其作出并实际执行的刑事拘留行为符合《刑事诉讼法》的规定,属于合法的职务行为,不应承担国家赔偿责任。这种辩解虽然存在合法的支撑,但是在无罪判决的基础上显然与被告人人身自由被剥夺的客观事实形成激烈冲突。在国家责任承担的理念下,解决此类"合法不合理"现象比较科学的思路应当是:在尊重现行国家赔偿法的立法规定和坚持侦查机关承担国家赔偿责任适用"违法归责"原则的前提下,通过"补正"研究,探索合法刑事拘留致损的"国家补偿机制,以契合侦查机关查处、打击犯罪的积极性与人权保障之间的有机平衡。
[Abstract]:The lawful duty behavior of criminal detention taken by the investigating organ will undoubtedly result in the criminal suspect being deprived of his personal freedom objectively. But in the subsequent trial procedure, the suspect may also be acquitted because of unclear facts and insufficient evidence. Once the defendant is acquitted, it means that the fact that he has been deprived of his personal liberty requires a legal remedy. However, in judicial practice, the investigation organ often insists that the criminal detention that it makes and actually carries out accords with the provisions of the Criminal procedure Law, and belongs to the legal duty act, and should not bear the state compensation responsibility. Although there is legal support for this kind of defense, it obviously conflicts with the objective fact that the defendant is deprived of his personal liberty on the basis of acquittal. Under the concept of national responsibility, The scientific way to solve this kind of "legal and unreasonable" phenomenon should be: under the premise of respecting the legislative provisions of the current state compensation law and insisting on the application of the principle of "illegal imputation" to the state compensation responsibility of the investigation organ, Through the study of "supplement and correction", this paper explores the "state compensation mechanism" for the damage caused by lawful criminal detention, in order to coincide with the investigation and punishment of the investigation organs and the organic balance between the enthusiasm for cracking down on crime and the protection of human rights.
【作者单位】：华东政法大学;江苏省无锡市中级人民法院;
【分类号】：D925.2

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