定罪证据不足的违法裁判方式研究
发布时间：2018-12-20 22:04
【摘要】：证据是刑事诉讼审判过程中查明事实的依据,若定罪证据不足则意味着刑事犯罪事实无法确认,由此就不能认定被告人有罪。我国1979年的刑事诉讼法规定,一审证据不足的案件,必须退回检察院；1996年的刑事诉讼法更是进一步规定“证据不足,不能认定被告人有罪的,应当作出证据不足、指控的犯罪不能成立的无罪判决”。然而,在司法实践中,法院在事实不清、证据不足之时,直接作出有罪或拖延判决(定罪证据不足的违法裁判)的情形时有发生,如赵作海案、张氏叔侄案、李怀亮案等。定罪证据不足的违法裁判现象频频出现,不利于我国刑事诉讼法人权保护功能的实现,也不利于我国现代化法治建设,必须采取相应措施予以规制。 本文分为四个部分,从分析存在于实践中的定罪证据不足的违法裁判方式的现象着手,探寻这种违法裁判方式产生的原因及危害,从而对规制法院在定罪证据不足时实施的违法裁判行为提出对策。 第一部分列举了违法裁判方式的形式,通过对有关案例进行相应的分类,论述违法裁判方式的类型,即无视疑点的有罪判决、留有余地的有罪判决以及拖延判决三种形式。 第二部分对违法裁判方式的危害进行论述。通过对相关案例的解析,明确违法裁判对刑事司法存在以下危害：增加刑事错案的风险、降低侦查起诉的质量,以及窒碍刑事辩护权的行使和导致超期羁押等。 第三部分着重分析各种违法裁判方式存在的原因。我国一直存在着严重的侦查中心主义倾向,对证据的作用及判决说理过于忽视,再加上法院会受到体制内与体制外的各机关、团体以及个人的干预,导致法官在审判的过程中,过于注重利益权衡及风险规避,而无法做到“以事实为依据,以法律为准绳”。 第四部分主要是根据我国刑事诉讼法治的具体实际情况,提出杜绝违法裁判方式,落实疑罪从无原则的具体对策,包括完善刑事诉讼体制,保障法院外部独立,建立法院内部独立制度和完善错案追责制度。
[Abstract]:Evidence is the basis for finding out the facts in the course of criminal proceedings. If the conviction evidence is insufficient, it means that the fact of the criminal offence cannot be confirmed, and therefore the accused can not be found guilty. According to the Criminal procedure Law of 1979, the cases of lack of evidence in first instance must be returned to the procuratorate. The Criminal procedure Law of 1996 further stipulates that "if the evidence is insufficient, if the accused cannot be found guilty, he shall make an acquittal of the lack of evidence and the inadmissibility of the alleged crime". However, in judicial practice, when the facts are not clear and the evidence is insufficient, the court often makes a guilty or delaying judgment (the illegal judgment with insufficient conviction evidence), such as Zhao Zuohai case, Zhang's nephew case, Li Huailiang case and so on. The phenomenon of illegal adjudication with insufficient evidence of conviction appears frequently, which is not conducive to the realization of the human rights protection function of our criminal procedure law, nor to the construction of modern rule of law in our country, so we must take corresponding measures to regulate it. This article is divided into four parts, starting from the analysis of the phenomenon of illegal adjudication which has insufficient evidence of conviction in practice, to explore the causes and harm of this illegal adjudication. The countermeasures are put forward to regulate the illegal adjudication behavior of the court when the conviction evidence is insufficient. The first part enumerates the forms of illegal adjudication, through the corresponding classification of relevant cases, discusses the types of illegal adjudication, that is, ignoring the doubt of the guilty judgment, leaving room for the guilty judgment and procrastination of the three forms. The second part discusses the harm of illegal adjudication. Through the analysis of relevant cases, it is clear that illegal adjudication has the following harm to criminal justice: increase the risk of criminal error, reduce the quality of investigation and prosecution, and stifle the exercise of the right to criminal defense and lead to extended detention, and so on. The third part focuses on the analysis of the reasons for the existence of various illegal adjudication methods. In our country, there has always been a serious tendency of centralism of investigation, which neglects the role of evidence and the reasoning of judgment, plus that the court will be interfered by various organs, groups and individuals within and outside the system, leading to the judges in the course of trial. Too much attention to the balance of interests and risk aversion, and can not achieve "based on the facts, the law as the yardstick." The fourth part is mainly according to the actual situation of our country's criminal procedure law, put forward to put an end to the illegal adjudication way, carry out the concrete countermeasure that suspects the crime from no principle, including perfect the criminal procedure system, safeguard the court outside the independence, To establish an independent system within the court and to perfect the system of pursuing misdemeanor cases.
【学位授予单位】：西南政法大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D925.2
本文编号：2388470
[Abstract]:Evidence is the basis for finding out the facts in the course of criminal proceedings. If the conviction evidence is insufficient, it means that the fact of the criminal offence cannot be confirmed, and therefore the accused can not be found guilty. According to the Criminal procedure Law of 1979, the cases of lack of evidence in first instance must be returned to the procuratorate. The Criminal procedure Law of 1996 further stipulates that "if the evidence is insufficient, if the accused cannot be found guilty, he shall make an acquittal of the lack of evidence and the inadmissibility of the alleged crime". However, in judicial practice, when the facts are not clear and the evidence is insufficient, the court often makes a guilty or delaying judgment (the illegal judgment with insufficient conviction evidence), such as Zhao Zuohai case, Zhang's nephew case, Li Huailiang case and so on. The phenomenon of illegal adjudication with insufficient evidence of conviction appears frequently, which is not conducive to the realization of the human rights protection function of our criminal procedure law, nor to the construction of modern rule of law in our country, so we must take corresponding measures to regulate it. This article is divided into four parts, starting from the analysis of the phenomenon of illegal adjudication which has insufficient evidence of conviction in practice, to explore the causes and harm of this illegal adjudication. The countermeasures are put forward to regulate the illegal adjudication behavior of the court when the conviction evidence is insufficient. The first part enumerates the forms of illegal adjudication, through the corresponding classification of relevant cases, discusses the types of illegal adjudication, that is, ignoring the doubt of the guilty judgment, leaving room for the guilty judgment and procrastination of the three forms. The second part discusses the harm of illegal adjudication. Through the analysis of relevant cases, it is clear that illegal adjudication has the following harm to criminal justice: increase the risk of criminal error, reduce the quality of investigation and prosecution, and stifle the exercise of the right to criminal defense and lead to extended detention, and so on. The third part focuses on the analysis of the reasons for the existence of various illegal adjudication methods. In our country, there has always been a serious tendency of centralism of investigation, which neglects the role of evidence and the reasoning of judgment, plus that the court will be interfered by various organs, groups and individuals within and outside the system, leading to the judges in the course of trial. Too much attention to the balance of interests and risk aversion, and can not achieve "based on the facts, the law as the yardstick." The fourth part is mainly according to the actual situation of our country's criminal procedure law, put forward to put an end to the illegal adjudication way, carry out the concrete countermeasure that suspects the crime from no principle, including perfect the criminal procedure system, safeguard the court outside the independence, To establish an independent system within the court and to perfect the system of pursuing misdemeanor cases.
【学位授予单位】：西南政法大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D925.2
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