论我国附条件不起诉制度的扩大适用

发布时间：2019-01-11 10:15

【摘要】：进入21世纪以来,随着经济全球化进程加快,刑事犯罪处于高发态势,世界各国司法成本逐渐增加,司法资源相对稀缺性矛盾亦随之凸显。同时,随着社会文明的发展进步,社会价值观、文化观逐步多元化,传统的报应刑之刑事司法制度逐步被刑罚轻缓化、个别化和社会公益化制度所替代。附条件不起诉制度作为起诉便宜主义的一种具体表现形式,其在节约司法资源、协调利益冲突、控制减少犯罪、恢复受损秩序方面的功能逐渐被世界各国认同,具有重要的诉讼价值。我国的附条件不起诉制度作为一项起初立法无明文规定、司法实践先行的制度,在立法确立之前已得到司法实践的广泛认可,它实质上是介于起诉权与不起诉权之间的一种“待诉权”,是检察机关运用起诉裁量权的充分体现。但不可否认,法律制度作为上层建筑范畴,也必然受经济基础所制约,附条件不起诉制度同样应根据经济社会发展进行变革与调整,以此来满足社会需要。我国的附条件不起诉制度限制过严、局限过多,不仅限制适用于未成年人,且限制适用于刑法分则第四章至第六章所规定之犯罪和可能判处为一年有期徒刑以下刑罚的行为,此诸多限制使附条件不起诉在实践中未能充分发挥应有价值。笔者认为,我国的附条件不起诉制度完全可以扩大适用范围。本文在导言部分从文献综述入手,阐述现在理论界关于附条件不起诉制度的研究成果,提出实践中对附条件不起诉限制适用过严、可扩大适用范围的观点。正文共分为三个部分,第一部分主要提出对我国附条件不起诉的正确理解与分析,并指出我国附条件不起诉制度的诸多限制。第二部分从国内实践做法和国外实践经验两方面论证我国附条件不起诉制度扩大适用的实践基础。第三部分从起诉便宜主义、诉讼效益、现代刑法理论、人权保障理论等方面论证我国附条件不起诉扩大适用的理论基础。
[Abstract]:Since the beginning of the 21st century, with the acceleration of the process of economic globalization, criminal offences are in a high incidence situation, the judicial costs of countries in the world gradually increase, judicial resources are relatively scarce contradiction also highlights. At the same time, with the development and progress of social civilization, social values and cultural views are gradually diversified, the traditional criminal justice system of retribution penalty is gradually replaced by the system of penalty mitigation, individualization and social commonweal. The system of conditional non-prosecution, as a concrete manifestation of the doctrine of cheap prosecution, has been recognized by all countries in the world for its functions in saving judicial resources, coordinating conflicts of interest, controlling and reducing crime, and restoring damaged order. Have important lawsuit value. The system of conditional non-prosecution in our country, as a system with no explicit provisions in legislation at the beginning, has been widely accepted by judicial practice before the establishment of legislation. In essence, it is a kind of "pending right" between the right to sue and the right of not suing, which is the full embodiment of the procuratorial organ's application of the discretion of prosecution. However, it is undeniable that the legal system, as a superstructure category, is bound to be restricted by the economic base, and the system of conditional non-prosecution should also be reformed and adjusted according to the economic and social development in order to meet the needs of the society. The system of conditional non-prosecution in our country is too restrictive and too restrictive. It not only applies to minors, but also to the crimes stipulated in chapters IV to VI of the Criminal Law and to acts that may be sentenced to a penalty of not more than one year of fixed-term imprisonment. These restrictions make conditional non-prosecution fail to give full play to its due value in practice. The author believes that our country's conditional non-prosecution system can completely expand the scope of application. In the introduction part, starting with the literature review, this paper expounds the current research results of the system of conditional non-prosecution in the theoretical circle, and puts forward the viewpoint that the application of the limitation of conditional non-prosecution in practice is too strict and the scope of application can be expanded. The text is divided into three parts. The first part mainly puts forward the correct understanding and analysis of conditional non-prosecution in China, and points out many limitations of the system of conditional non-prosecution in our country. The second part demonstrates the practical basis of the extension of the conditional non-prosecution system from the aspects of domestic practice and foreign practical experience. The third part demonstrates the theoretical basis of expanding the application of conditional non-prosecution in our country from the aspects of prosecution cheap doctrine, lawsuit benefit, modern criminal law theory, human rights guarantee theory and so on.
【学位授予单位】：山东大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D925.2

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