论我国贿赂犯罪诉讼中行贿人刑事豁免制度的构建
发布时间：2019-03-16 15:56
【摘要】：行贿人刑事豁免制度实质上是污点证人刑事豁免制度。根据日本法学家田口守—的解释,污点证人刑事豁免权制度是指“根据自我归罪特权而行使拒绝陈述权从而不能获得证实犯罪的必要证据时,对于共犯关系中一部分人免予刑事责任,使他丧失拒绝自我归罪的特权,强制让他陈述,用他的陈述证明其他人有罪的制度”。污点证人制度内容较为宽泛,适用于各类刑事案件诉讼,本文仅针对贿赂犯罪诉讼中行贿人的刑事豁免制度的构建问题进行论述。行贿人的刑事豁免制度以其自身所具有的司法价值,被世界上许多国家所采纳。该项制度的目的是为了用有限的司法资源确保对受贿犯罪的追诉。贿赂案件的特殊性,使建立贿赂案件行贿人刑事豁免制度比该项制度在其他案件上的应用有更大的价值。 本文分四部分,第一部分介绍了我国贿赂案件诉讼的现状、面临的问题,对行贿人的处理情况,造成现实中的困境的原因即贿赂犯罪证据的特殊性。并介绍了目前贿赂犯罪诉讼中对行贿人的处理规定以及司法实践中的方法以及现实中的困境。第二部分详细阐述了刑事豁免制度的立法背景和前提是不得强迫自证其罪原则,并概括了行贿人刑事豁免制度的内容。论述了行贿人刑事豁免制度的法理基础利益权衡原则和哲学基础实用主义哲学。介绍了目前我国建立行贿人刑事豁免制度的支持以及反对的观点,并从我国政治伦理、刑事诉讼目的、罪责刑相适应的角度论证了我国贿赂犯罪诉讼中建立行贿人刑事豁免制度的可行性。第三部分介绍了英国、美国、德国的相关制度,及其在贿赂犯罪诉讼过程中的应用,并对其豁免模式、适用范围进行了比较。第四部分结合我国贿赂犯罪诉讼的实际情况,论述了我国建立行贿人刑事豁免制度的现实必要性,通过借鉴域外经验,提出在我国贿赂案件诉讼中建立行贿人刑事豁免制度的构想,为完善我国打击严重的贿赂犯罪的立法与司法实践提供参考。
[Abstract]:The criminal immunity system of bribe-payer is essentially the criminal immunity system of tainted witness. According to the interpretation of the Japanese jurist Shou Taguchi, the system of criminal immunity of tainted witnesses refers to "when the right of refusal of statement is exercised on the basis of the prerogative of self-attribution and the necessary evidence cannot be obtained to substantiate the crime," The system of exempting some of the accomplices from criminal responsibility, depriving him of the privilege of refusing to impute himself, forcing him to state, and proving the guilt of others with his statements ". The content of tainted witness system is relatively broad, which is applicable to all kinds of criminal cases. This paper only discusses the construction of criminal immunity system of bribe-payers in bribery criminal litigation. The criminal immunity system of bribe-payer is adopted by many countries in the world because of its own judicial value. The purpose of the system is to ensure the prosecution of bribery crimes with limited judicial resources. The particularity of bribery case makes it more valuable to establish the criminal immunity system of bribe payer than this system in other cases. This paper is divided into four parts, the first part introduces the current situation of bribery litigation in China, the problems faced, the handling of bribe-payers, the cause of the dilemma in reality, that is, the particularity of evidence of bribery crime. It also introduces the rules of dealing with the bribe-takers in the bribery criminal litigation, the methods in the judicial practice and the difficulties in the reality. The second part expounds the legislative background and premise of the criminal immunity system in detail, and summarizes the content of the criminal immunity system of the bribe-payer, as well as the principle that the criminal immunity system should not be forced to self-incriminate itself. This paper discusses the legal basis of the criminal immunity system of bribe-payers, the principle of balancing interests and the philosophical basis of pragmatism. This paper introduces the support for and opposition to the establishment of criminal immunity system for bribe-payers in China at present, and from the point of view of political ethics and the purpose of criminal procedure in China, It proves the feasibility of establishing the criminal immunity system of bribe-payer in the bribery criminal litigation of our country from the angle of the adaptation of the criminal responsibility and punishment. The third part introduces the relevant systems of Britain, America and Germany, and their application in the process of bribery lawsuit, and compares their immunity mode and scope of application. The fourth part discusses the realistic necessity of establishing the criminal immunity system of bribe-payers in our country according to the actual situation of the bribery crime litigation in our country, and draws lessons from the experience of foreign countries. This paper puts forward the idea of establishing the criminal immunity system of bribe-payers in the litigation of bribery cases in our country, which provides a reference for perfecting the legislation and judicial practice of cracking down on serious bribery crimes in our country.
【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
[Abstract]:The criminal immunity system of bribe-payer is essentially the criminal immunity system of tainted witness. According to the interpretation of the Japanese jurist Shou Taguchi, the system of criminal immunity of tainted witnesses refers to "when the right of refusal of statement is exercised on the basis of the prerogative of self-attribution and the necessary evidence cannot be obtained to substantiate the crime," The system of exempting some of the accomplices from criminal responsibility, depriving him of the privilege of refusing to impute himself, forcing him to state, and proving the guilt of others with his statements ". The content of tainted witness system is relatively broad, which is applicable to all kinds of criminal cases. This paper only discusses the construction of criminal immunity system of bribe-payers in bribery criminal litigation. The criminal immunity system of bribe-payer is adopted by many countries in the world because of its own judicial value. The purpose of the system is to ensure the prosecution of bribery crimes with limited judicial resources. The particularity of bribery case makes it more valuable to establish the criminal immunity system of bribe payer than this system in other cases. This paper is divided into four parts, the first part introduces the current situation of bribery litigation in China, the problems faced, the handling of bribe-payers, the cause of the dilemma in reality, that is, the particularity of evidence of bribery crime. It also introduces the rules of dealing with the bribe-takers in the bribery criminal litigation, the methods in the judicial practice and the difficulties in the reality. The second part expounds the legislative background and premise of the criminal immunity system in detail, and summarizes the content of the criminal immunity system of the bribe-payer, as well as the principle that the criminal immunity system should not be forced to self-incriminate itself. This paper discusses the legal basis of the criminal immunity system of bribe-payers, the principle of balancing interests and the philosophical basis of pragmatism. This paper introduces the support for and opposition to the establishment of criminal immunity system for bribe-payers in China at present, and from the point of view of political ethics and the purpose of criminal procedure in China, It proves the feasibility of establishing the criminal immunity system of bribe-payer in the bribery criminal litigation of our country from the angle of the adaptation of the criminal responsibility and punishment. The third part introduces the relevant systems of Britain, America and Germany, and their application in the process of bribery lawsuit, and compares their immunity mode and scope of application. The fourth part discusses the realistic necessity of establishing the criminal immunity system of bribe-payers in our country according to the actual situation of the bribery crime litigation in our country, and draws lessons from the experience of foreign countries. This paper puts forward the idea of establishing the criminal immunity system of bribe-payers in the litigation of bribery cases in our country, which provides a reference for perfecting the legislation and judicial practice of cracking down on serious bribery crimes in our country.
【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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