审判阶段刑事错案防范的若干思考

发布时间：2018-11-18 09:05

【摘要】：刑事审判活动是人们认识活动的一部分，必然会有来自人类认识固有局限性的制约。刑事审判活动在诸多环节中极有可能出现各种各样的错误，有些错误会导致刑事错案的发生。因此，审判环节中出现刑事错案，就目前人类认识能力上看是无法彻底避免的。但是，在我国审判实践中出现的刑事错案，有很大一部分是完全能够避免的，通过相关审判程序和制度的完善和确立，能够对刑事错案的预防起到积极的效果。随着我国法治建设的不断深入，刑事错案在近些年来成为司法实务届和刑法理论界所关注的焦点。对刑事错案的关注表明了我国人权保障意识的加强，揭示了我国刑事诉讼制度所暴露出的诸多问题。本文选择审判机关的视角对刑事错案的防范进行研究，分析以往刑事错案的深层次原因，结合司法实践中存在的问题，探讨审判阶段对刑事错案防范的对策。本文第一章对刑事错案的基本理论予以阐释。目前，人们对刑事错案的概念界定尚存在不小的分歧，而厘清刑事错案的概念对于探讨刑事错案的成因与预防提供了理论基础。审判环节中刑事错案是对法律事实的偏离和适用法律的错误，并且具有较大的社会危害性，无论从案件当事人其及家属的角度出发还是从我国法治建设的角度出发，刑事错案都具有极强的破坏性，给当事人和社会带来严重的伤害。本文第二章从刑事审判阶段对于证据的审查和采信环节如何防范错案的角度进行了探讨。从目前发现的严重刑事错案来看，法庭审理阶段对证据的审查和采信存在问题，特别是忽略对证据的合法性的审查判断，对于非法制度的排除规则，新的法律和司法解释逐步明确了排除的主体、条件、程序，但是法院在审判阶段是否能有效的排除非法证据还有待实践来证明，特别是当该证据是对被告人定罪的关键证据时，法官能否有足够的魄力坚决将其排除仍然面临考验。想要做到在审判阶段对刑事错案加以防范，必须坚决对非法证据予以排除，并坚持“排除合理怀疑的”证明标准，是证据形成完整的链条，得出排他的结论。证人证言和鉴定意见对带有一定的主观性，对于案件事实的正确认定具有关键作用，进一步完善证人出庭制度和科学的采用鉴定意见，也是准确认定事实，避免错案发生的重要途径。第三章则详尽阐释了保持审判中立对于防范刑事错案的重要性。在我国刑事诉讼的过程中，控辩双方的对抗存在显著的不平等性，法院由于和承担公诉只能的检察院存在天然的联系，而使得被告人处于明显的略施地位。由于侦查阶段和审查起诉阶段的特殊性，被告人权利往往很难得到完全的保障，审判阶段当中被告人得到了为自己辩解的机会，但是往往由于审判机关的有罪推定观念，造成被告人辩护权利刑事的不充分。法院本来应当居于公诉机关和被告人之间充当裁判角色，然而在维护稳定和打击犯罪的双重目标下，法院多数情况下和公安机关、检察机关联手扮演着保护社会、打击犯罪的角色，造成了许多错案的发生。因此，法院应当回归本位，有意识的平衡控辩双方力量，让公诉机关承担更多的证明责任，使法庭审判真正成为控辩对抗的舞台。本文第四章则是从审判机关自身制度构建分析如何加强对错案的防范。首先，，法院应当努力拜托外部环境的影响，真正做到独立行使审判权，从去行政化和去地方化两方面着手，将案件的决定权真正还给案件的审理者，做到让审理者裁判。其次，建全刑事错案责任追究机制，让在案件审理过程中有重大责任的法官真正被追究，制定合理可行的错案责任追究程序，明确法官在案件审理中应当承担的责任，加强对错案责任铸就监督，使责任铸就机制真正落到实处，做到让裁判者负责。最后，审判机关首先从观念上转变，才能在行为中体现，必须牢牢树立疑罪从无的原则。在面临打击犯罪和保障人权的价值冲突时，将保障人权放在刑事审判目标的首位，是防范刑事错案的根本基础。
[Abstract]:Criminal trial activity is a part of people's awareness activities, and it is bound to come from the inherent limitations of human cognition. There are many kinds of errors in the criminal trial activities, some of which can lead to the occurrence of the criminal case. As a result, there are criminal cases in the trial, which can not be completely avoided at present. However, in our country's trial practice, there is a large part of the criminal case that can be avoided, and the prevention of the criminal case can be played an active effect through the improvement and establishment of the relevant trial procedures and the system. With the development of the rule of law in our country, the criminal cases have become the focus of the judicial practice and the theory of criminal law in recent years. The concern of the criminal case shows the strengthening of the consciousness of human rights protection in our country, and reveals many problems exposed in our criminal procedure system. This paper makes a study on the prevention of the case of the criminal case from the angle of view of the judicial organ, analyzes the deep-seated causes of the past criminal case and the problems existing in the judicial practice, and probes into the countermeasures of the prevention of the criminal case in the trial stage. The first chapter of this article is to give the basic theory of the criminal case At present, there are still some differences in the definition of the case of the criminal case, and the concept of the case of the criminal error has provided the theory for the exploration of the cause and the prevention of the criminal case. On the basis of the deviation of the legal facts and the error of the applicable law, the case of the criminal error in the trial link has great social harmfulness, and the criminal case has a very strong breaking point from the angle of the case party and the family and from the angle of the construction of the rule of law in our country. It's bad. It's serious for the parties and the society. The second chapter of this article from the criminal trial stage to the review of the evidence and how to prevent the angle of the wrong case On the basis of the serious criminal cases, the review of the evidence and the existence of the letter, in particular the examination and judgment of the validity of the evidence, the rule of exclusion of the illegal system, the new law and the judicial explanation are gradually clear. The main body, condition, procedure, but whether the court can effectively rule out the illegal evidence in the trial stage and to prove it, especially when the evidence is the key evidence for the conviction of the accused, can the judge have sufficient force to resolutely exclude it Faced with the test. To prevent the criminal cases during the trial stage, it is necessary to resolutely rule out the illegal evidence and to insist on the proof of reasonable doubt, and it is the evidence to form a complete chain. The author's conclusion is that the witness's testimony and the appraisal opinions have a certain subjectivity, and have a key role in the correct identification of the facts of the case, further improve the witness appearance system and the scientific use of the appraisal opinions, and also the accurate identification of the facts and avoid the occurrence of the wrong case. The third chapter explains the protection of the neutrality of the trial. In the course of the criminal procedure of our country, the confrontation between the two parties has a significant inequality, and the court has the natural connection with the public prosecutor's office, which can only be used for the public prosecution, so that the defendant Because of the particularity of the investigation stage and the prosecution stage, the defendant's rights are often difficult to obtain complete guarantee. In the trial stage, the defendant has the opportunity to defend himself, but often the defendant's defense is caused by the presumption of guilt of the judicial organ. The court should be a referee in the public prosecution and the defendant. However, under the double objective of maintaining stability and fighting crime, the court in most cases and the public security organs and the procuratorial organs play a role in protecting the society and fighting crime. Therefore, the court should return to the standard, consciously balance the power of the two parties, and let the public prosecution service assume more proof responsibility, so that the trial of the court is truly The fourth part of this paper is the construction of the self-system of the judicial organ. In the first place, the court should try to put on the influence of the external environment, to make the independent exercise of the right of trial, to proceed from the two aspects of the administration and the localization, and to return the decision of the case to the trial of the case. Secondly, it is the responsibility of the judge to investigate the case before the judge who has a great responsibility in the course of the case is to be investigated, and a reasonable and feasible criminal liability investigation procedure is established, and the judge should be responsible for the case trial. To strengthen the supervision of the liability of the wrong case, so that the responsibility is cast on the basis of the fact that the mechanism really falls In fact, it is the responsibility of the referees. In the end, the judicial organ is first changed from the concept to be embodied in the act and must be In the face of the conflict of the value of the crime and the human rights, the human rights should be placed in the first place in the objective of the criminal trial.
【学位授予单位】：吉林大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D925.2

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