检察机关适用指定居所监视居住措施的实证研究
发布时间：2018-11-16 13:57
【摘要】：指定居所监视居住是指限制被监视居住人在规定期限内不得离开指定的居所,并对其行为加以监视、限制其人身自由的一种强制措施。该制度系正当性强制措施,其存在不仅使我国强制措施体系更完善、更合理,还能有效推进反腐工作,但由于充分发挥指定居所监视居住制度的司法实用性较难、适用指定居所监视居住特别容易招引负面评价风险。2012年《中华人民共和国刑事诉讼法修正案》在深入调研和周密论证的基础上,吸纳了诸多法学家们和学者们的研究成果,对指定居所监视居住的立法做了较大的修改,更符合我国国情。但在司法实践中适用指定居所监视居住强制措施仍存在以下四个方面的困惑：理解与适用的条件难以把握、执行场所不确定与随意性、变更为逮捕较随意、执行监督效果不佳。诸多工作盲点和实践难点出现的原因主要是法律规定不明确、对法律规定的理解存在分歧和偏差。上述问题导致在司法实践中适用指定居所监视居住不仅使办案安全、合法处于不确定状态,而且极易使指定居所监视居住强制措施背上“渣子洞”的负面评价。为此,应该转变执法理念,完善适用指定居所监视居住的相关制度,包括严格把握适用的条件、明确执行场所和执行方式、强化监督意识和监督措施的落实、明确实施监审分离制度、建立违规指定居所监视居住的程序性制裁机制。通过这些措施的完善,解决适用指定居所监视居住在司法实践中出现的难以把握的新情况和新问题,指导办案,发挥该制度应有的司法实用性。
[Abstract]:Designated residence monitoring is a kind of compulsory measure which restricts the person under surveillance from leaving the designated residence within a specified period of time, monitors his behavior and restricts his personal freedom. The existence of this system not only makes the system of coercive measures more perfect and reasonable, but also can effectively promote the anti-corruption work. However, it is difficult to give full play to the judicial practicability of the system of designated residence monitoring. The application of designated residence monitoring of residence is particularly apt to attract negative evaluation risks. The 2012 Criminal procedure Law Amendment of the people's Republic of China, on the basis of in-depth investigation and thorough argumentation, has absorbed the research results of many jurists and scholars. The legislation of designated residence monitoring has been amended, which is more in line with the situation of our country. However, in judicial practice, there are still four puzzles in the application of mandatory measures of residence monitoring in the judicial practice: the conditions of understanding and application are difficult to grasp, the place of execution is uncertain and arbitrary, the arrest is more arbitrary, and the effect of execution and supervision is not good. The main reasons for many blind spots and difficulties in practice are that the laws and regulations are not clear and there are differences and deviations in the understanding of the laws and regulations. The above problems lead to the application of designated residence monitoring residence in judicial practice, which not only makes the case safe and legal in uncertain state, but also easily makes the mandatory measure of designated residence surveillance bear the negative evaluation of "residual hole". To this end, we should change the concept of law enforcement, perfect the relevant system for monitoring and living in designated residences, including strictly grasping the applicable conditions, clarifying the place and mode of implementation, and strengthening the sense of supervision and the implementation of supervisory measures. Clear implementation of the system of separation of supervision and trial, establish a violation of designated residence monitoring of the procedural sanctions mechanism. Through the perfection of these measures, we can solve the new situation and new problems that appear in the judicial practice of applying designated residence surveillance, guide the case handling, and give full play to the judicial practicability of the system.
【学位授予单位】：湖南师范大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D925.2
本文编号：2335701
[Abstract]:Designated residence monitoring is a kind of compulsory measure which restricts the person under surveillance from leaving the designated residence within a specified period of time, monitors his behavior and restricts his personal freedom. The existence of this system not only makes the system of coercive measures more perfect and reasonable, but also can effectively promote the anti-corruption work. However, it is difficult to give full play to the judicial practicability of the system of designated residence monitoring. The application of designated residence monitoring of residence is particularly apt to attract negative evaluation risks. The 2012 Criminal procedure Law Amendment of the people's Republic of China, on the basis of in-depth investigation and thorough argumentation, has absorbed the research results of many jurists and scholars. The legislation of designated residence monitoring has been amended, which is more in line with the situation of our country. However, in judicial practice, there are still four puzzles in the application of mandatory measures of residence monitoring in the judicial practice: the conditions of understanding and application are difficult to grasp, the place of execution is uncertain and arbitrary, the arrest is more arbitrary, and the effect of execution and supervision is not good. The main reasons for many blind spots and difficulties in practice are that the laws and regulations are not clear and there are differences and deviations in the understanding of the laws and regulations. The above problems lead to the application of designated residence monitoring residence in judicial practice, which not only makes the case safe and legal in uncertain state, but also easily makes the mandatory measure of designated residence surveillance bear the negative evaluation of "residual hole". To this end, we should change the concept of law enforcement, perfect the relevant system for monitoring and living in designated residences, including strictly grasping the applicable conditions, clarifying the place and mode of implementation, and strengthening the sense of supervision and the implementation of supervisory measures. Clear implementation of the system of separation of supervision and trial, establish a violation of designated residence monitoring of the procedural sanctions mechanism. Through the perfection of these measures, we can solve the new situation and new problems that appear in the judicial practice of applying designated residence surveillance, guide the case handling, and give full play to the judicial practicability of the system.
【学位授予单位】：湖南师范大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D925.2
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