非法证据排除程序中侦查人员出庭作证制度研究
发布时间：2018-11-18 18:06
【摘要】：随着一系列刑事错案的频频曝光,刑讯逼供被公认为错案形成的主要原因,这也将侦查人员实施的证据收集行为的合法性问题推到了风口浪尖。为了规范侦查机关的侦查活动,防止因侦查权的不合理扩张以及案卷中心主义导致错案频发,我国正在大力推行“以审判为中心”的刑事诉讼制度改革。由于非法证据排除程序中侦查人员出庭作证制度在规制侦查权、遏制庭审虚化以及保障控辩双方平等对抗等方面完全符合“以审判为中心”的基本要求,因此该制度必将成为我国实现“以审判为中心”不可缺少的必要途径。同时,“以审判为中心”的提出,也为该制度在我国的进一步完善提供了契机。本文首先对非法证据排除程序中侦查人员出庭作证制度进行了简要概述,明确界定了侦查人员在非法证据排除程序中出庭的证明对象、身份性质与适用的案件情形,并将侦查人员作为“程序证人”出庭与普通证人出庭、侦查人员作为“实体证人”出庭进行了对比总结。并且,从核实证据合法性、倒逼取证行为规范化以及实现“以审判为中心”三个角度分析了制度存在的价值。其次,通过对该制度的立法现状与在我国的实际运行现状进行分析,总结出我国侦查人员基本不出庭、出庭效果不佳的三大主要障碍:基础性内容不明确,具体程序缺乏细化,保障措施缺乏规定。再次,从英美法系和大陆法系国家或地区相关的制度或者做法入手,考察对我国制度的启示,力图将制度与其根植的社会文化环境联系在一起,从中吸收有益成果予以借鉴。最后,笔者按照“以审判为中心”的基本要求,从基础性内容、具体程序、保障措施三个方面九个角度提出了对该制度的完善思路,主要包括:统一侦查人员出庭作证的法律规则,明确侦查人员出庭的证人身份,重新界定侦查人员出庭作证的提请主体范围,细化侦查人员出庭作证的决定权限,明确侦查人员出庭作证的行为规范,明确侦查人员拒不出庭的法律后果,明确侦查人员出庭作证的权利保障,明确侦查人员出庭作证的责任豁免,明确侦查考核制度与年度报告审查机制。以期能够有效遏制侦查权的进一步扩张,实现庭审控辩实质化,最终实现“以审判为中心”的根本目标。
[Abstract]:With the frequent exposure of a series of criminal misdemeanors, extorting confessions by torture is recognized as the main reason for the formation of the wrong cases, which also pushes the legality of the evidence-gathering behavior carried out by investigators to the forefront of the storm. In order to standardize the investigation activities of the investigation organs and prevent the unreasonable expansion of the investigation power and the frequent occurrence of wrong cases caused by the centralism of the case file, our country is vigorously carrying out the reform of the criminal procedure system of "taking the trial as the center". As the system of investigators appearing in court to testify in the procedure of excluding illegal evidence fully meets the basic requirements of "taking trial as the center" in regulating the right of investigation, containing the fickleness of the trial and ensuring the equal confrontation between the prosecution and the defense, etc. Therefore, the system will become an indispensable way to realize "trial as the center" in our country. At the same time, the proposal of "taking trial as the center" also provides an opportunity for the further improvement of the system in our country. Firstly, this paper briefly summarizes the system of investigators appearing in court to testify in the procedure of excluding illegal evidence, and clearly defines the object of proof, the nature of identity and the applicable circumstances of cases in which investigators appear in the procedure of excluding illegal evidence. It also compares the appearance of investigators as "procedural witnesses" and ordinary witnesses, and the appearance of investigators as "substantive witnesses". Moreover, this paper analyzes the value of the system from three angles: verifying the legality of evidence, forcing the standardization of evidence collection and realizing "trial as the center". Secondly, through the analysis of the current legislative situation and the actual operation of the system in our country, the author summarizes the three main obstacles that the investigators in our country basically do not appear in court and the effect of appearing in court is not good: the basic content is not clear, the concrete procedure is lack of refinement. Safeguards are lacking. Thirdly, from the Anglo-American law system and the civil law system countries or regions related systems or practices, to investigate the inspiration to the system of our country, try to link the system with its rooted social and cultural environment, from which to absorb useful results to be used for reference. Finally, according to the basic requirements of "taking trial as the center", the author puts forward nine ideas to perfect the system from three aspects: basic content, concrete procedure and safeguard measures. It mainly includes: unifying the legal rules for investigators to testify in court, clarifying the identity of the witnesses appearing in court, redefining the scope of the subject for the investigators to testify in court, and refining the decision authority of the investigators to testify in court. Make clear the behavior norm of investigators appearing in court, clear the legal consequence of investigators refusing to appear in court, make clear the right guarantee of investigators to testify in court, clarify the exemption of duty of investigators to testify in court, Clarify the investigation examination system and the annual report review mechanism. The purpose is to effectively contain the further expansion of investigation power, realize the essence of trial prosecution and debate, and finally realize the fundamental goal of "taking trial as the center".
【学位授予单位】：山东科技大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D925.2
本文编号：2340745
[Abstract]:With the frequent exposure of a series of criminal misdemeanors, extorting confessions by torture is recognized as the main reason for the formation of the wrong cases, which also pushes the legality of the evidence-gathering behavior carried out by investigators to the forefront of the storm. In order to standardize the investigation activities of the investigation organs and prevent the unreasonable expansion of the investigation power and the frequent occurrence of wrong cases caused by the centralism of the case file, our country is vigorously carrying out the reform of the criminal procedure system of "taking the trial as the center". As the system of investigators appearing in court to testify in the procedure of excluding illegal evidence fully meets the basic requirements of "taking trial as the center" in regulating the right of investigation, containing the fickleness of the trial and ensuring the equal confrontation between the prosecution and the defense, etc. Therefore, the system will become an indispensable way to realize "trial as the center" in our country. At the same time, the proposal of "taking trial as the center" also provides an opportunity for the further improvement of the system in our country. Firstly, this paper briefly summarizes the system of investigators appearing in court to testify in the procedure of excluding illegal evidence, and clearly defines the object of proof, the nature of identity and the applicable circumstances of cases in which investigators appear in the procedure of excluding illegal evidence. It also compares the appearance of investigators as "procedural witnesses" and ordinary witnesses, and the appearance of investigators as "substantive witnesses". Moreover, this paper analyzes the value of the system from three angles: verifying the legality of evidence, forcing the standardization of evidence collection and realizing "trial as the center". Secondly, through the analysis of the current legislative situation and the actual operation of the system in our country, the author summarizes the three main obstacles that the investigators in our country basically do not appear in court and the effect of appearing in court is not good: the basic content is not clear, the concrete procedure is lack of refinement. Safeguards are lacking. Thirdly, from the Anglo-American law system and the civil law system countries or regions related systems or practices, to investigate the inspiration to the system of our country, try to link the system with its rooted social and cultural environment, from which to absorb useful results to be used for reference. Finally, according to the basic requirements of "taking trial as the center", the author puts forward nine ideas to perfect the system from three aspects: basic content, concrete procedure and safeguard measures. It mainly includes: unifying the legal rules for investigators to testify in court, clarifying the identity of the witnesses appearing in court, redefining the scope of the subject for the investigators to testify in court, and refining the decision authority of the investigators to testify in court. Make clear the behavior norm of investigators appearing in court, clear the legal consequence of investigators refusing to appear in court, make clear the right guarantee of investigators to testify in court, clarify the exemption of duty of investigators to testify in court, Clarify the investigation examination system and the annual report review mechanism. The purpose is to effectively contain the further expansion of investigation power, realize the essence of trial prosecution and debate, and finally realize the fundamental goal of "taking trial as the center".
【学位授予单位】：山东科技大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D925.2
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