不强迫自证其罪原则研究
发布时间：2018-11-16 08:45
【摘要】：不强迫自证其罪，，是一项重要的刑事诉讼原则，己经在世界上不少国家和地区得到认可和应用。在我国2012年《刑事诉讼法》中，首次确立了不强迫自证其罪原则，这在我国刑事立法中具有里程碑的意义。另一方面，不强迫自证其罪原则的确立是一个复杂的系统工程,涉及到刑事诉讼制度的改革、国家权力和公民权利的分配以及证据规则的修改和完善等。相较于欧美国家在适用不强迫自证其罪原则方面有着比较成熟的做法，我国在这一方面的立法和司法实践中存在诸多缺陷，需要在借鉴他国经验的基础上予以完善。 本文梳理了不强迫自证其罪原则的起源和发展历程，对其理论基础和内涵进行了深入探讨，认识到人权保障理论、程序正义理论和无罪推定理论是支撑该原则的坚实基础，也是认识其内涵的前提。其次，不强迫自证其罪原则在国外经过多年的发展，己经较为成熟，本文对于外国在适用该原则的过程中产生的一系列法律规则进行了系统地总结和归纳，并从中获得一些启示，以期待为该原则在我国的适用提供借鉴。接着阐述了不强迫自证其罪原则在我国适用的现状，分析了立法中已经建立的相关制度以及存在的缺陷，这为进一步提出完善建议作了准备。 最后，在我国立法初步确立不强迫自证其罪原则的基础上，借鉴国外的立法例和相关制度建设，结合我国的实际国情，对其进行重新审视和进一步研宄，认为在司法实践中应充分认识不强迫自证其罪原则与“应当如实回答”条款的关系，并适当理解和运用“应当如实回答”条款，不能使该规定成为司法人员刑讯逼供的借口；应当修正该原则条款在《刑事诉讼法》中的位置和表述，将该原则上升为刑事诉讼的基本原则来指导整个刑事诉讼过程，避免由于表述不准确造成司法适用的不统一；应当完善该原则在我国适用的例外情形，以实现打击犯罪与保障人权的平衡；应当构建和完善该原则的制度体系，从建立沉默权制度、强化辩护权制度、完善非法证据排除制度、健全证人作证制度几个方面出发，来实现不强迫自证其罪原则在我国的制度化构建，避免因空泛、缺乏操作性的固有缺陷造成该原则在我国法律中沦为一纸空文，通过具体的制度实施来推动不强迫自证其罪原则在我国的适用，与此同时这些制度的适用也对该原则的实现具有保障作用。
[Abstract]:Non-compulsive self-incrimination is an important principle of criminal procedure, which has been recognized and applied in many countries and regions in the world. In the Criminal procedure Law of our country in 2012, the principle of non-compulsive self-incrimination was established for the first time, which is of great significance in the criminal legislation of our country. On the other hand, the establishment of the principle of non-compulsive self-incrimination is a complex systematic project, which involves the reform of criminal procedure system, the distribution of state power and civil rights, and the modification and improvement of the rules of evidence, etc. Compared with the European and American countries in applying the principle of non-compulsive self-incrimination, there are many defects in our legislation and judicial practice in this respect, which need to be perfected on the basis of drawing lessons from the experience of other countries. This paper combs the origin and development of the principle of non-compulsive self-incrimination, probes into its theoretical basis and connotation, and recognizes that the theory of human rights protection, the theory of procedural justice and the theory of presumption of innocence are the solid foundation to support the principle. It is also the premise of understanding its connotation. Secondly, the principle of non-compulsive self-incrimination has been developed in foreign countries for many years. This paper summarizes and summarizes systematically a series of legal rules produced by foreign countries in the process of applying this principle. And get some enlightenment from it in order to provide reference for the application of this principle in our country. Then it expounds the current situation of the application of the principle of non-compulsive self-incrimination in our country, analyzes the relevant system and the defects in the legislation, which is the preparation for the further improvement of the proposal. Finally, on the basis of establishing the principle of non-compulsive self-incrimination in our country's legislation, drawing lessons from foreign legislative cases and related system construction, combining with the actual situation of our country, we re-examine and further study it. In judicial practice, we should fully understand the relationship between the principle of non-compulsive self-incrimination and the clause "shall answer truthfully", and properly understand and apply the clause "shall answer truthfully", which cannot make this provision an excuse for judicial personnel to extort confessions by torture; We should amend the position and expression of this principle clause in the Criminal procedure Law, raise the principle to the basic principle of criminal procedure to guide the whole criminal procedure process, avoid the inconsistency of judicial application caused by inaccurate expression; We should perfect the exception that this principle applies in our country, in order to achieve the balance between fighting crime and guaranteeing human rights; We should construct and perfect the system of this principle, from establishing the system of right to silence, strengthening the system of defense right, perfecting the system of excluding illegal evidence, perfecting the system of witness testifying. To realize the institutionalization of the principle of non-compulsive self-incrimination in our country, to avoid the inherent defects of emptiness and lack of maneuverability, which makes the principle become a dead letter in our country's law. Through the implementation of specific systems to promote the application of the principle of non-compulsive self-incrimination in our country, at the same time, the application of these systems can also guarantee the realization of the principle.
【学位授予单位】：上海师范大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D925.2
本文编号：2335058
[Abstract]:Non-compulsive self-incrimination is an important principle of criminal procedure, which has been recognized and applied in many countries and regions in the world. In the Criminal procedure Law of our country in 2012, the principle of non-compulsive self-incrimination was established for the first time, which is of great significance in the criminal legislation of our country. On the other hand, the establishment of the principle of non-compulsive self-incrimination is a complex systematic project, which involves the reform of criminal procedure system, the distribution of state power and civil rights, and the modification and improvement of the rules of evidence, etc. Compared with the European and American countries in applying the principle of non-compulsive self-incrimination, there are many defects in our legislation and judicial practice in this respect, which need to be perfected on the basis of drawing lessons from the experience of other countries. This paper combs the origin and development of the principle of non-compulsive self-incrimination, probes into its theoretical basis and connotation, and recognizes that the theory of human rights protection, the theory of procedural justice and the theory of presumption of innocence are the solid foundation to support the principle. It is also the premise of understanding its connotation. Secondly, the principle of non-compulsive self-incrimination has been developed in foreign countries for many years. This paper summarizes and summarizes systematically a series of legal rules produced by foreign countries in the process of applying this principle. And get some enlightenment from it in order to provide reference for the application of this principle in our country. Then it expounds the current situation of the application of the principle of non-compulsive self-incrimination in our country, analyzes the relevant system and the defects in the legislation, which is the preparation for the further improvement of the proposal. Finally, on the basis of establishing the principle of non-compulsive self-incrimination in our country's legislation, drawing lessons from foreign legislative cases and related system construction, combining with the actual situation of our country, we re-examine and further study it. In judicial practice, we should fully understand the relationship between the principle of non-compulsive self-incrimination and the clause "shall answer truthfully", and properly understand and apply the clause "shall answer truthfully", which cannot make this provision an excuse for judicial personnel to extort confessions by torture; We should amend the position and expression of this principle clause in the Criminal procedure Law, raise the principle to the basic principle of criminal procedure to guide the whole criminal procedure process, avoid the inconsistency of judicial application caused by inaccurate expression; We should perfect the exception that this principle applies in our country, in order to achieve the balance between fighting crime and guaranteeing human rights; We should construct and perfect the system of this principle, from establishing the system of right to silence, strengthening the system of defense right, perfecting the system of excluding illegal evidence, perfecting the system of witness testifying. To realize the institutionalization of the principle of non-compulsive self-incrimination in our country, to avoid the inherent defects of emptiness and lack of maneuverability, which makes the principle become a dead letter in our country's law. Through the implementation of specific systems to promote the application of the principle of non-compulsive self-incrimination in our country, at the same time, the application of these systems can also guarantee the realization of the principle.
【学位授予单位】：上海师范大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D925.2
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