我国刑事诉讼中亲属拒证权研究

发布时间：2019-03-19 12:26

【摘要】：我国现行的刑诉立法条文明确规定了证人在询问过程中应当如实告知所知悉的案件信息,因为言词证据在案件的诉讼侦破过程中有着其他证据类型无法替代的优势,故而这样的立法条文规定本是无可厚非的。但是,当证人与犯罪嫌疑人或被告人之间存在亲属关系时,法定的作证义务便会使证人处于两难境地。如果亲属证人违背自己的内心意愿选择作证,其内心将会受到极大的煎熬,如果亲属证人顺从自己的内心意愿拒绝作证,又会违背相关的法律规定,因为我国法律规定证人有如实作证的义务。面临此种情形,大部分国家都选择了在立法上设置亲属拒证权,用来缓解亲属证人的两难处境。我国更应该在继承历史文化的基础上设置立法中具体的亲属拒证权。我国历史上是存在有亲属拒证权的,该权利可以说是逐渐从亲亲相隐制度转变过来的。亲亲相隐制度自产生以后便被历代的统治者所承认,并逐渐上升到立法层面,并最终转变为亲属拒证权。但是自新中国成立后,我国刑诉立法中并没有设置亲属拒证权。一直到2012年我国的刑事诉讼立法中才有了体现该项权利内容立法精神的条文。但是,我国目前毕竟还没有建立起真正的亲属拒证权,因为该权利最基本的内容体现应当是亲属证人享有的拒绝作证的权利,拒绝出庭的权利只是部分国家立法设置的内容。因此,本文通过历史分析的方法、文献研究的方法等对亲属拒证权进行了论述,并主要通过四部分章节来展现本文的主要内容。第一章概括论述了亲属拒证权在我国具体的发展历程。该部分运用历史研究方法,沿着历史发展的脉络,对我国亲属拒证权的产生、发展及现状进行了论述。其内容主要包括我国亲亲相隐制度的历史演变过程和该制度向亲属拒证权的转型过程以及我国现在的立法状况。第二章梳理了两大法系国家亲属拒证权的立法条文,包括英国、美国和德国、日本的立法现状,并在此基础上进行了比较研究。第三章分析了我国现行的立法中存在的一些问题及原因。其中对于存在的问题采用列举的方式,主要包括法律适用上的冲突,主体适用范围狭窄,且界定不明确,亲属拒证权的适用阶段不完整,缺乏相应的保障和救济措施以及没有适用该特权的例外规定等问题。对于原因分析这部分内容,主要从以下几个方面进行陈述,包括过度批判和抵制我国传统的法律制度和文献、机械照搬前苏联的诉讼制度和理论等方面,另外还分析了我国法律思想方面的原因。第四章论述了设置该权利的必要性及具体的理论考量,是本文的重难点。主要是从促进社会和谐、树立法律权威以及提高诉讼效率等方面来论述我国构建亲属拒证权的必要性。同时从构建从亲属拒证权的基本类型、权利主体、保障与救济措施以及例外的变通规定等方面来论述构建我国亲属拒证权的具体规定。
[Abstract]:China's current legislative provisions on criminal procedure clearly stipulate that witnesses should truthfully inform the known case information in the course of questioning, because the verbal evidence has the advantage that other types of evidence cannot be replaced in the course of the investigation of the case. Therefore, such a legislative provision would not be beyond reproach. However, when there is a kinship between the witness and the suspect or defendant, the legal obligation to testify will put the witness in a dilemma. If a relative witness chooses to testify against his or her inner will, he or she will suffer a great deal, and if a relative witness refuses to testify against his or her inner will, he or she will also violate the relevant legal provisions, Because the law of our country stipulates that the witness has the obligation to testify truthfully. In order to alleviate the dilemma of relatives witnesses, most countries choose to set the right of refusing relatives in legislation. On the basis of inheriting the history and culture, our country should set up the specific relatives' right of refusing evidence in the legislation. In the history of our country, there exists the right of refusing evidence from relatives, which can be said to have been gradually transformed from the system of closeness between relatives and relatives. Since the birth of the system, the system has been recognized by the rulers of all dynasties, and gradually rose to the legislative level, and eventually transformed into the right of refusal of relatives. However, since the founding of New China, there is no right of refusal of relatives in the legislation of criminal procedure in China. It was not until 2012 that the legislative spirit of this right was embodied in the criminal procedure legislation of our country. However, at present, our country has not established the real right of refusing to testify, because the most basic content of this right should be the right of the relative witness to refuse to testify, and the right of refusing to appear in court is only the content of some national legislation. Therefore, through the methods of historical analysis and literature research, this paper discusses the right to refuse evidence of relatives, and mainly through four chapters to show the main contents of this paper. The first chapter briefly discusses the specific development process of the right to refuse evidence of relatives in our country. This part uses the historical research method, along the historical development vein, discusses the birth, development and present situation of the relatives' right of refusing to testify in our country. Its contents mainly include the historical evolution process of the system of close relatives and the transition process from the system to the right of refusing evidence from relatives and the present legislative situation of our country. The second chapter combs the legislative provisions of the right of refusing evidence of relatives in the two legal systems, including Britain, the United States, Germany and Japan, and makes a comparative study on this basis. The third chapter analyzes some problems and reasons existing in the current legislation of our country. The existing problems include conflicts in the application of law, narrow scope of subject application, unclear definition and incomplete stage of application of the right of refusal of evidence of relatives, among which the existing problems are enumerated, including conflicts in the application of law, narrow scope of subject application, and unclear definition. The lack of corresponding safeguards and relief measures and the absence of exceptions to the privilege. For the reason analysis this part, mainly from the following aspects to state, including excessive criticism and resistance to our traditional legal system and literature, mechanical copying of the former Soviet Union litigation system and theory, and so on. In addition, it also analyzes the reasons of the legal thought of our country. The fourth chapter discusses the necessity of setting up the right and the specific theoretical considerations, which is the most difficult point of this paper. This paper mainly discusses the necessity of constructing relatives' right of refusing evidence from the aspects of promoting social harmony, establishing legal authority and improving the efficiency of litigation. At the same time, from the aspects of the basic type, the subject of the right, the safeguard and relief measures and the modification of the exception, this paper discusses the specific provisions of the right to refuse the certificate of the relatives of our country.
【学位授予单位】：甘肃政法学院
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D925.2

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