亲属拒证权制度的研究

发布时间：2019-01-21 11:33

【摘要】：在大多数现代国家,亲属拒证权制度是一项重要的法律制度,亲属拒证权,即一些符合作证条件的证人,因为具备法律规定的特殊情形而拒绝作证所享有的权利。这项权利制度体现了保障人权的理念和稳定社会的目的。亲属拒证权制度体现保障亲属证人的自主的法律地位,它也是对国家公权力的一种限制,这项权利制度的产生是各种价值利益权衡的结果,它有利于平衡诉讼中证人权利义务的失衡。亲属拒证权制度主要存在于国外的法律,而在我国目前,刑事诉讼法中仅强调证人绝对的作证义务,没有规定亲属拒证权制度。在实践中,一些亲属证人碍于亲情的关系,不愿意向有关机关指证与自己有亲情关系的犯罪嫌疑人或被告人,针对证人不作证的问题,许多学者提倡设立亲属拒证权制度,试图解决这一难题,笔者认为,我国刑事诉讼应设立亲属拒证权制度。本文首先从亲属拒政权的有关基本概念入手,介绍亲属拒证权制度,接着又通过探讨亲属拒证权的现实价值来揭示其意义；然后研究了我国亲属拒证权制度的历史渊源；并且研究分析了两大法系的亲属拒证权制度的有关内容,揭示其值得我国借鉴的做法；最后论述我国确立亲属拒证权制度的立法构想,包括它在我国的现状,设立的条件,设立的程序和适用的例外,以期在我国刑事诉讼法上设立亲属拒证权制度。
[Abstract]:In most modern countries, the system of relatives' right to refuse to testify is an important legal system. The right of relatives to refuse to testify, that is, some witnesses who meet the requirements of testifying, is the right to refuse to testify because of the special circumstances stipulated by law. This right system embodies the idea of protecting human rights and the purpose of stabilizing society. The system of the right of relatives refusing to testify embodies the independent legal status of protecting the witnesses of relatives, and it is also a kind of restriction to the public power of the state. The emergence of this system of rights is the result of various value and interests weighing. It helps to balance the imbalance of witness rights and obligations in litigation. The system of relatives' right to refuse to testify mainly exists in foreign laws, but at present, the criminal procedure law of our country only emphasizes the witness's absolute duty of testifying, and does not stipulate the system of relatives' right of refusing to testify. In practice, some relative witnesses are unwilling to testify to the relevant authorities about criminal suspects or defendants who have kinship ties due to their kinship. In view of the problem that witnesses do not testify, many scholars advocate the establishment of a system of the right of relatives to refuse to testify. Trying to solve this problem, the author thinks that the system of relatives' right to refuse evidence should be set up in our country's criminal procedure. This paper begins with the basic concept of relatives refusing political power, introduces the system of relatives' right to refuse certificates, and then reveals its significance by discussing the practical value of the right of relatives to refuse certificates, and then studies the historical origin of the system of refusal of relatives' rights of refusing certificates. And it also studies and analyzes the relevant contents of the system of the right of relatives to refuse the certificate in the two legal systems, and reveals the practice that our country can use for reference. In the end, the author discusses the legislative conception of establishing the system of the right of refusal of proof by relatives in our country, including its present situation, the conditions of its establishment, the procedure of establishment and the exception of its application, in order to establish the system of the right of refusal of proof of relatives in the criminal procedure law of our country.
【学位授予单位】：南京师范大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D925.2

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