职务犯罪案件言词证据研究
发布时间：2018-12-26 16:01
【摘要】：证据是刑事诉讼的核心问题,而言词证据之于职务犯罪案件而言更是重中之重。近年来因言词证据收集问题导致不起诉或者无罪判决的贪污案件并不鲜见,值得思考和总结的地方很多。职务犯罪案件中言词证据的重要作用加上其自身特点,使得打击腐败的难度加大。从职务犯罪类型的特殊性、职务犯罪案件侦查的特殊性以及职务犯罪案件中言词证据的特殊性都可以考量,职务犯罪的主体为特殊群体,拥有较强的法律素养和反侦查意识,同时职务犯罪的手段多隐蔽,较难发现,这些特点决定了职务犯罪案件侦查路径通常是"由人查事",必然突显了言词证据在其中的重要地位。职务犯罪案件言词证据的适用也不同于一般案件,从证据适用角度能够看出职务犯罪自身特点,并以此为基础,分析职务犯罪案件在言词证据的收集、审查、质证、认证以及非法证据排除等方面的特殊性,从各个角度出发,分析职务犯罪案件言词证据存在的具体问题,并针对问题提出解决方案。正是基于职务犯罪种种特殊之处,决定了职务犯罪案件中言词证据的收集与固定不同于一般案件。实践中,职务犯罪案件言词证据的收集与固定存在多方面的问题,如认定和使用证据不全,轻信" 口供"的作用,不重视收集无罪证据等;在职务犯罪案件中对于言词证据的收集与固定还存在许多难点,如职务犯罪案件中证据尤其是言词证据的易变性;对于证人证言的收集最重要的就是保障证人意志自由,彻底贯彻自白任意性规则,对于职务犯罪案件这类特殊案件,证人多数情况为涉案人员,探索污点证人制度的构建,主要构建职务犯罪案件中的刑事豁免权制度,同时在一定程度上保证"污点证人"及其亲属的人身安全,这些措施将对于反腐工作可能会有促进意义。证据审查或称证据的认定是证明的关键,审查内容主要是证据的"三性",而从整体而言,应当符合证据之间相互印证、证据组合形成体系等标准。实践中对于职务犯罪案件言词证据的审查存在一些困境,如言词证据的不稳定性与证据审查的确定性之间存在冲突等,对此需要探索具体对策。在职务犯罪案件中,纪委监察机关移送材料和检察院初查获取证据材料经常涉及其中,由于这两种证据材料的收集并不在刑事诉讼程序中,因此对于此二者的可采性以及相关转化程序也需深入研究。职务犯罪案件中非法言词证据的排除对于职务犯罪案件言词证据的准确运用具有重要意义,也是职务犯罪案件言词证据审查认定的最终目的之一。经审查确定为非法言词证据的,应当绝对排除,不得作为定案证据。然而实践中对于非法言词证据的排除却存在一些困难,主要是由于职务犯罪案件对于言词证据的依赖性过高等原因所致,对此可以通过弱化言词证据的证明作用、完善非法证据排除的证明责任分配等措施予以解决。
[Abstract]:Evidence is the core of criminal procedure, and verbal evidence is the most important in duty crime cases. In recent years, the corruption cases caused by the problem of verbal evidence collection are not uncommon, which is worth thinking and summing up. The important role of verbal evidence in duty crime cases and its own characteristics make it more difficult to combat corruption. Considering the particularity of duty crime type, the particularity of duty crime case investigation and the particularity of verbal evidence in duty crime case, the subject of duty crime is a special group, which has strong legal literacy and anti-investigation consciousness. At the same time, it is difficult to find that the methods of duty crime are more covert. These characteristics determine that the investigation path of duty crime cases is usually "investigated by people", which inevitably highlights the important position of verbal evidence in it. The application of verbal evidence in job-related crime cases is also different from that in general cases. From the point of view of evidence application, we can see the characteristics of job-related crimes, and on this basis, we can analyze the collection, examination and cross-examination of verbal evidence in job-related crime cases. Based on the particularity of authentication and the exclusion of illegal evidence, this paper analyzes the concrete problems existing in the verbal evidence of duty crime cases from various angles, and puts forward solutions to the problems. It is on the basis of the special features of duty crime that the collection and fixation of verbal evidence in duty crime cases are different from ordinary cases. In practice, there are many problems in the collection and fixation of verbal evidence in duty crime cases, such as the incomplete identification and use of evidence, the credulity of "confession", and the lack of attention to the collection of innocent evidence. There are still many difficulties in the collection and fixation of verbal evidence in job-related crime cases, such as the variability of evidence, especially verbal evidence, in job-related crime cases; For the collection of witness testimony, the most important thing is to protect the free will of witnesses and thoroughly implement the rules of arbitrariness in confessions. For such special cases as job-related crimes, the majority of witnesses are the persons involved, so as to explore the construction of the system of tainted witnesses. This paper mainly constructs the criminal immunity system in the case of job-related crimes, and at the same time, to a certain extent, ensures the personal safety of the "tainted witness" and their relatives. These measures will promote the anti-corruption work. Evidence examination or identification of evidence is the key of proof. The content of examination is mainly the "three properties" of evidence, but on the whole, it should conform to the standards of mutual confirmation between evidence and the system of formation of evidence combination and so on. In practice, there are some difficulties in the examination of verbal evidence in job-related crime cases, such as the conflict between the instability of verbal evidence and the certainty of evidence review, etc. In cases of job-related crimes, the materials transferred by the discipline Inspection Commission and the procuratorates to obtain evidence are often involved. Since the collection of these two kinds of evidence materials is not in criminal proceedings, Therefore, the admissibility of the two and related transformation procedures also need to be further studied. The exclusion of illegal verbal evidence in job-related crime cases is of great significance for the accurate use of verbal evidence in job-related crime cases, and is also one of the ultimate purposes of examining and determining verbal evidence in job-related crimes cases. If the evidence is determined to be illegal after examination, it shall be absolutely excluded and shall not be used as conclusive evidence. However, in practice, there are some difficulties in excluding illegal verbal evidence, mainly due to the excessive dependence on verbal evidence in job-related crime cases, which can be proved by weakening the proof of verbal evidence. Measures such as perfecting the distribution of burden of proof to exclude illegal evidence will be solved.
【学位授予单位】：安徽大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D925.2
本文编号：2392358
[Abstract]:Evidence is the core of criminal procedure, and verbal evidence is the most important in duty crime cases. In recent years, the corruption cases caused by the problem of verbal evidence collection are not uncommon, which is worth thinking and summing up. The important role of verbal evidence in duty crime cases and its own characteristics make it more difficult to combat corruption. Considering the particularity of duty crime type, the particularity of duty crime case investigation and the particularity of verbal evidence in duty crime case, the subject of duty crime is a special group, which has strong legal literacy and anti-investigation consciousness. At the same time, it is difficult to find that the methods of duty crime are more covert. These characteristics determine that the investigation path of duty crime cases is usually "investigated by people", which inevitably highlights the important position of verbal evidence in it. The application of verbal evidence in job-related crime cases is also different from that in general cases. From the point of view of evidence application, we can see the characteristics of job-related crimes, and on this basis, we can analyze the collection, examination and cross-examination of verbal evidence in job-related crime cases. Based on the particularity of authentication and the exclusion of illegal evidence, this paper analyzes the concrete problems existing in the verbal evidence of duty crime cases from various angles, and puts forward solutions to the problems. It is on the basis of the special features of duty crime that the collection and fixation of verbal evidence in duty crime cases are different from ordinary cases. In practice, there are many problems in the collection and fixation of verbal evidence in duty crime cases, such as the incomplete identification and use of evidence, the credulity of "confession", and the lack of attention to the collection of innocent evidence. There are still many difficulties in the collection and fixation of verbal evidence in job-related crime cases, such as the variability of evidence, especially verbal evidence, in job-related crime cases; For the collection of witness testimony, the most important thing is to protect the free will of witnesses and thoroughly implement the rules of arbitrariness in confessions. For such special cases as job-related crimes, the majority of witnesses are the persons involved, so as to explore the construction of the system of tainted witnesses. This paper mainly constructs the criminal immunity system in the case of job-related crimes, and at the same time, to a certain extent, ensures the personal safety of the "tainted witness" and their relatives. These measures will promote the anti-corruption work. Evidence examination or identification of evidence is the key of proof. The content of examination is mainly the "three properties" of evidence, but on the whole, it should conform to the standards of mutual confirmation between evidence and the system of formation of evidence combination and so on. In practice, there are some difficulties in the examination of verbal evidence in job-related crime cases, such as the conflict between the instability of verbal evidence and the certainty of evidence review, etc. In cases of job-related crimes, the materials transferred by the discipline Inspection Commission and the procuratorates to obtain evidence are often involved. Since the collection of these two kinds of evidence materials is not in criminal proceedings, Therefore, the admissibility of the two and related transformation procedures also need to be further studied. The exclusion of illegal verbal evidence in job-related crime cases is of great significance for the accurate use of verbal evidence in job-related crime cases, and is also one of the ultimate purposes of examining and determining verbal evidence in job-related crimes cases. If the evidence is determined to be illegal after examination, it shall be absolutely excluded and shall not be used as conclusive evidence. However, in practice, there are some difficulties in excluding illegal verbal evidence, mainly due to the excessive dependence on verbal evidence in job-related crime cases, which can be proved by weakening the proof of verbal evidence. Measures such as perfecting the distribution of burden of proof to exclude illegal evidence will be solved.
【学位授予单位】：安徽大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D925.2
【参考文献】
相关期刊论文 前1条
1 滑俊杰;;职务犯罪侦查阶段证据审查机制的建立和完善[J];人民检察;2013年18期
，本文编号：2392358
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