检察机关撤回公诉程序规制研究

发布时间：2018-12-12 07:50

【摘要】：检察机关撤回公诉,是指刑事案件被提起公诉之后,检察机关发现案件存在不必要起诉或不应当起诉的法定情形时,主动将业已提起的公诉进行撤回。这是以检察机关拥有相对充分的自由裁量权为前提的,是现代刑事司法体系的重要环节,有利于实现刑事诉讼的高效与公正,节约诉讼资源,保障刑事诉讼当事人的正当权益。检察机关撤回公诉问题在我国现行《刑事诉讼法》中没有明确规定,仅仅在最高人民检察院和最高人民法院的司法解释中有所涉及。我国1979年《刑事诉讼法》曾对该制度有过明确的设定,但自从1996年《刑事诉讼法》将其废除以来,一度引起了学者们对检察机关撤回公诉制度存与废的争论。直至2013年新《刑事诉讼法》实施以来,依然没能将该制度明确写入其中,加上两高司法解释的规定也不够细致全面,使得当前对该制度的质疑之声越来越强烈。正是由于我国撤回公诉制度在立法上长期处于缺位状态且在司法解释中的规定过于粗疏和不完备,缺乏一定的可操作性,才导致司法实践中一直存在着适用程序混乱、操作违法、缺乏监督制约等各种缺陷和弊端。所造成的危害不仅仅是当事人的正当诉讼权益得不到保障,还动摇了刑事司法的威严,破坏了司法的公正性。因此从多方面对我国检察机关撤回公诉制度进行程序规制就显得十分必要。本文分为三个部分,对我国检察机关撤回公诉制度在理论和实务中存在的争议和问题进行探讨,进一步分析存在这些争议和问题的原因,从而加强和完善我国检察机关撤回公诉制度的程序规制,以期更好地指导和服务于刑事司法活动。第一部分是对我国检察机关撤回公诉制度的总体概述。首先介绍我国检察机关撤回公诉制度的性质和理论基础;其次对我国检察机关撤回公诉制度存与废的各种争论进行分析;最后评析我国设立撤回公诉制度的价值。第二部分主要是对我国撤回公诉制度在司法实践中存在的问题及其成因进行分析。透过我国撤回公诉制度的实践现状,从典型案例出发,来探析撤回公诉制度在我国司法实践中存在的诸多不规范问题,进而对这些问题的成因进行分析。第三部分是完善我国检察机关撤回公诉制度的具体对策。在人权保障、程序法治、诉讼经济等思想的指导下,分别从撤回公诉程序规制的条件、审查的主体、审查的程序、决定程序、异议和救济程序以及监督和制约程序等方面对我国检察机关撤回公诉制度进行程序规制。
[Abstract]:The procuratorial organ withdraws the public prosecution, refers to after the criminal case is prosecuted, the procuratorial organ discovers the case to have the unnecessary prosecution or should not sue the legal situation, the initiative carries on the withdrawal which has already initiated the public prosecution. This is based on the premise that procuratorial organs have relatively sufficient discretion, which is an important link in the modern criminal justice system, which is conducive to the realization of high efficiency and justice in criminal proceedings, the saving of litigation resources, and the protection of the legitimate rights and interests of the parties in criminal proceedings. The withdrawal of public prosecution by procuratorial organs is not clearly stipulated in the present Criminal procedure Law of China, but only in the judicial interpretation of the Supreme people's Procuratorate and the Supreme people's Court. China's Criminal procedure Law in 1979 had a clear set of the system, but since the abolition of the Criminal procedure Law in 1996, scholars once caused the procuratorial organs to withdraw the public prosecution system of the existence or abolition of controversy. Since the implementation of the new Criminal procedure Law in 2013, the new Criminal procedure Law has still failed to explicitly include the system, and the provisions of the two high judicial interpretations are not sufficiently detailed and comprehensive, which makes the voices of questioning the system more and more intense. It is precisely because our country withdraws the public prosecution system in the legislation for a long time in the vacancy state, the stipulation in the judicial interpretation is too careless and incomplete, lacks certain maneuverability, just causes the judicial practice to have the application procedure confusion all the time. Illegal operation, lack of supervision and restriction and other defects and drawbacks. The harm caused is not only that the litigants' rights and interests can not be guaranteed, but also shakes the prestige of criminal justice and undermines the justice of justice. Therefore, it is necessary to regulate the withdrawal of public prosecution system from many aspects. This paper is divided into three parts to discuss the disputes and problems existing in the theory and practice of the public prosecution system withdrawn by procuratorial organs in China, and to further analyze the reasons for these disputes and problems. In order to better guide and serve the criminal justice activities, we should strengthen and perfect the procedural regulation of procuratorial organ withdrawing public prosecution system in our country. The first part is the general summary of the procuratorial organ withdrawing the public prosecution system in our country. This paper first introduces the nature and theoretical basis of the withdrawal of public prosecution system by procuratorial organs in China; secondly, analyzes the various arguments about the existence and abolition of the withdrawal of public prosecution system by procuratorial organs in China; finally, evaluates the value of setting up the system of withdrawing public prosecution in our country. The second part mainly analyzes the problems and causes of withdrawing public prosecution system in judicial practice. Through the practice situation of withdrawing the public prosecution system in our country, from the typical cases, this paper probes into many non-standard problems existing in the judicial practice of withdrawing the public prosecution system in our country, and then analyzes the causes of these problems. The third part is to perfect our country procuratorial organ withdraws the public prosecution system concrete countermeasure. Under the guidance of the ideas of human rights protection, procedural rule of law, litigation economy and so on, respectively, from the conditions of withdrawing the regulation of public prosecution procedure, the subject of examination, the procedure of examination, and determining the procedure, Dissent and relief procedure, supervision and restriction procedure, etc., regulate the withdrawal of public prosecution system by procuratorial organs in our country.
【学位授予单位】：华东政法大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D925.2

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