毒品犯罪诱惑侦查实证研究

发布时间：2018-11-10 23:46

【摘要】：随着毒品犯罪的形式日趋多样化、隐蔽化,传统的回应型侦查模式已难以完成打击犯罪的任务要求。为了保障社会的安定有序,世界各国逐步探索出应对现代新型犯罪的侦查模式——主动型侦查。其中,对于科技手段依赖程度不高、侦查成本相对较低的诱惑侦查,因其取证的直接性和及时性而得到世界各国的普遍青睐。我国于2012年《刑事诉讼法》修订中肯定了诱惑侦查的合法地位,但宜粗不宜细的立法方针使得法律规定过于笼统,实践中各地司法机关对其适用情况出现分歧,学界和实务界也一直对其存废问题争论不休,对该问题进行探讨和审视具有较大的理论和现实意义。论文除引言和结语外共有四个部分,共计三万余字。第一部分为毒品犯罪诱惑侦查的价值分析。从正面价值来看,诱惑侦查可以直接发现犯罪,提供取证便利,具有经济效益,同时具有一定的法理正当性。从负面价值分析,诱惑侦查可能诱使他人犯罪,浪费司法资源;可能冲击社会信用体系,加剧诚信危机;存在警察滥用职权的可能,容易滋生腐败。因此,毒品犯罪诱惑侦查是一把双刃剑。第二部分为毒品犯罪诱惑侦查的实践考察。本文以C市J区和R市L区2012年至2014年6月毒品犯罪诱惑侦查案件为样本,从宏观和微观两个层面进行调研。宏观方面两地司法实践差异显著,L区鲜有使用,而J区适用频繁且批捕率居高不下,主要表现为积极回应型、反复引诱型和数量引诱型三大类。微观方面主要表现为程序操作随意、非法证据排除较少、案件多来自群众举报、引诱对象选择有针对性、案件审理多采用简易程序且普遍刑期较短。第三部分为毒品犯罪诱惑侦查存在的主要问题及原因分析。通过实证分析,我国毒品犯罪诱惑侦查主要存在两大问题,一是立法规定总体较为粗疏,合法性规定不明,二是侦查行为不规范,整体处于失范、无序状态。究其原因,一是立法规定模糊,二是程序有效规制缺失,三是非法证据排除存在困境,四是各地司法环境不同。第四部分为毒品犯罪诱惑侦查的法治化建构。具体而言包括三个方面,一是要明确诱惑侦查的合法界限,主要表现为主观方面应排除犯意引诱的情形,客观方面应严格限制引诱的程度,谨慎对未成年人使用诱惑侦查,并结合实践操作进行具体区分;二是进行有效的程序规制,启动程序需明确启动的标准和案件适用范围,完善审批程序,严格执行事前、事中、事后监督程序,保障救济之路,细化相关证据规则;三是建立科学的考核办法,结合实际情况改变考核思路。
[Abstract]:With the diversification and concealment of drug crime, it is difficult for the traditional response investigation mode to fulfill the task of fighting crime. In order to ensure the stability and order of society, countries in the world have gradually explored the active investigation mode to deal with modern new crimes. Among them, because of its directness and timeliness of obtaining evidence, the enticement investigation, which is not highly dependent on scientific and technological means and relatively low in cost of investigation, is generally favored by all countries all over the world. In the revision of the Criminal procedure Law in 2012, our country affirmed the legal status of enticement investigation, but the legislative policy, which should be rough rather than detailed, made the legal provisions too general, and in practice, the judicial organs in various parts of the country had different opinions on its application. The academic and practical circles have been debating the issue of its retention and abolition. It is of great theoretical and practical significance to explore and examine the problem. In addition to the introduction and conclusion of the thesis there are four parts, a total of more than 30,000 words. The first part is the value analysis of drug crime. From the point of view of positive value, enticement investigation can find crime directly, provide evidence collection convenience, have economic benefit, at the same time have certain legal legitimacy. From the negative value analysis, the temptation investigation may induce others to commit crimes and waste judicial resources; may impact the social credit system, aggravate the credit crisis; there is the possibility of police abuse of power, easy to breed corruption. Therefore, drug crime temptation detection is a double-edged sword. The second part is the practical investigation of drug crime temptation investigation. This paper takes the cases of drug crime temptation investigation from 2012 to June 2014 in J District of C City and L District of R City as samples. The investigation is carried out at the macro and micro levels. There are significant differences in judicial practice between the two places in macro aspect, the L area is seldom used, while the J area is frequently used and the rate of authorized arrest is high, which mainly shows three categories: positive response type, repeated inducement type and quantitative inducement type. The microscopic aspect mainly shows that the procedure operation is random, the illegal evidence is excluded less, the case comes from the masses to report, the enticing object is targeted, the case trial mostly adopts the summary procedure and the general sentence is short. The third part is the analysis of the main problems and causes of the drug-induced investigation. Through empirical analysis, there are two main problems in the temptation investigation of drug crimes in our country. One is that the legislative provisions are generally rough, the legal provisions are unclear, and the other is that the investigation behavior is not standard and the whole is in a state of disorder. The reasons are that the legislation is vague, the procedure is not effective, the illegal evidence is ruled out, and the judicial environment is different. The fourth part is the legal construction of drug-induced investigation. Specifically, it includes three aspects. One is to make clear the legal limits of temptation investigation, which mainly shows that the subjective aspect should exclude the situation of criminal intention inducement, and the objective aspect should strictly limit the degree of temptation, and carefully use temptation investigation to minors. And combined with practical operation to make a specific distinction; The other is to regulate the procedure effectively. The starting procedure should define the standard of starting and the scope of application of the case, perfect the examination and approval procedure, strictly carry out the procedure of supervision in advance, during and after the event, safeguard the road of relief, and refine the relevant rules of evidence; Third, the establishment of scientific assessment methods, combined with the actual situation to change the assessment ideas.
【学位授予单位】：西南政法大学
【学位级别】：硕士
【学位授予年份】：2015
【分类号】：D925.2

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