沉默权的经济分析
发布时间：2019-03-25 16:29
【摘要】：沉默权是指犯罪嫌疑人、被告人在刑事诉讼过程中对于来自官方的提问有拒绝回答或者完全保持沉默的权利，若其保持沉默或对于具体问题拒绝回答，原则上不得从中作出对其不利的推论。沉默权有利于保障犯罪嫌疑人、被告人的诉讼主体地位，实现保障人权与惩罚犯罪的双重目标；有利于建立科学的刑事诉讼结构模式，实现审判模式由职权主义向当事人主义的跨越；有利于提高国际认同，增强公众对刑事法制的信心，促进刑事诉讼程序良性运作。 本文采用广义经济学分析方法，，将非经济关注纳入经济学研究视角，并利用数学模型和图表，对沉默权进行成本和收益分析。沉默权的成本分为三部分：一是必然增加的成本，由传统经济学意义上的成本与非传统经济学意义上的成本组成；二是必然减少的成本，主要是错误成本与伦理成本；三是不会增加的成本，某些特殊的犯罪不会因为沉默权的设立而使成本增加。沉默权的收益分为传统经济学意义上的收益和非传统经济学意义上的收益。基于对沉默权的成本与收益之比较，沉默权制度具备基本的合理性，在我国值得确立和发展。 犯罪嫌疑人收益最大化可从定罪、量刑、犯罪嫌疑人风险偏好对沉默权的影响，三个方面加以分析；应当通过控制边际成本与边际收益均衡，采取相应措施应对信息严重的不对称，以保证实现侦控机关的收益最大化。从犯罪嫌疑人和侦控机关两个方面进行的最优化分析表明：只有对沉默权进行适度的限制，才能实现其收益的最大化。当沉默权产生的边际收益大于沉默权的边际成本时，应当充分保障嫌疑人、被告人的沉默权，平衡侦控方与嫌疑人的诉讼地位；当沉默权产生的边际收益小于沉默权的边际成本时，应逐渐增加对犯罪嫌疑人、被告人行使沉默权的限制；当沉默权产生的边际收益等于其边际成本时，利润最大化。
[Abstract]:The right to silence refers to the right of a criminal suspect or a defendant to refuse to answer or remain silent in the course of criminal proceedings against a question from an official. If it is silent or refuses to answer a specific question, it is not in principle possible to make a negative inference from it. The right to silence is beneficial to the protection of the criminal suspect and the defendant's legal status and the dual goal of guaranteeing the human rights and the punishment of the crime; it is beneficial to the establishment of a scientific criminal procedure structure mode, and the realization of the crossing of the trial mode from the power of competence to the party doctrine; and is beneficial to the improvement of international recognition. To enhance the public's confidence in the criminal legal system and to promote the benign operation of the criminal procedure. In this paper, by means of the general economic analysis method, the non-economic interest is included in the economic research perspective, and the mathematical model and the graph are used to carry out the cost and income distribution of the right to silence. The cost of the right to silence is divided into three parts: one is the inevitable increase of the cost, the cost in the meaning of the traditional economics and the cost of the non-traditional economic sense; the second is the inevitable cost, which is mainly the error cost and the ethical cost; and the third is not increased. The present, certain special crimes do not increase the cost due to the establishment of the right to silence The income of the right to silence is divided into the income from the traditional economic sense and the income from the non-traditional economic sense. On the basis of the comparison of the cost and the income of the right to silence, the right of silence has the basic rationality, and it is worth to establish and develop in our country. The maximization of the proceeds of the criminal suspect can be analyzed from three aspects, such as the conviction, the sentencing, the risk preference of the criminal suspect, the right to silence, the analysis of the three aspects, and the corresponding measures should be taken to deal with the serious information by controlling the marginal cost and the marginal income balance. Insymmetry to ensure the realization of the proceeds of the investigation and control agency The optimization analysis of the two aspects of the criminal suspect and the investigation and control agency shows that only the right to the right to silence can be limited only in order to realize the income. Maximizing. When the marginal income generated by the right to silence is greater than the marginal cost of the right to silence, the right of silence of the suspect and the defendant should be fully guaranteed, the litigation status of the investigation and control party and the suspect should be balanced, and when the marginal income generated by the right to silence is less than the marginal cost of the right to silence, At the time of the cost, the limitation of the right of silence to the criminal suspect and the defendant should be gradually increased; when the marginal income generated by the right to silence is equal to the marginal cost, the profit
【学位授予单位】：烟台大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D925.2
本文编号：2447134
[Abstract]:The right to silence refers to the right of a criminal suspect or a defendant to refuse to answer or remain silent in the course of criminal proceedings against a question from an official. If it is silent or refuses to answer a specific question, it is not in principle possible to make a negative inference from it. The right to silence is beneficial to the protection of the criminal suspect and the defendant's legal status and the dual goal of guaranteeing the human rights and the punishment of the crime; it is beneficial to the establishment of a scientific criminal procedure structure mode, and the realization of the crossing of the trial mode from the power of competence to the party doctrine; and is beneficial to the improvement of international recognition. To enhance the public's confidence in the criminal legal system and to promote the benign operation of the criminal procedure. In this paper, by means of the general economic analysis method, the non-economic interest is included in the economic research perspective, and the mathematical model and the graph are used to carry out the cost and income distribution of the right to silence. The cost of the right to silence is divided into three parts: one is the inevitable increase of the cost, the cost in the meaning of the traditional economics and the cost of the non-traditional economic sense; the second is the inevitable cost, which is mainly the error cost and the ethical cost; and the third is not increased. The present, certain special crimes do not increase the cost due to the establishment of the right to silence The income of the right to silence is divided into the income from the traditional economic sense and the income from the non-traditional economic sense. On the basis of the comparison of the cost and the income of the right to silence, the right of silence has the basic rationality, and it is worth to establish and develop in our country. The maximization of the proceeds of the criminal suspect can be analyzed from three aspects, such as the conviction, the sentencing, the risk preference of the criminal suspect, the right to silence, the analysis of the three aspects, and the corresponding measures should be taken to deal with the serious information by controlling the marginal cost and the marginal income balance. Insymmetry to ensure the realization of the proceeds of the investigation and control agency The optimization analysis of the two aspects of the criminal suspect and the investigation and control agency shows that only the right to the right to silence can be limited only in order to realize the income. Maximizing. When the marginal income generated by the right to silence is greater than the marginal cost of the right to silence, the right of silence of the suspect and the defendant should be fully guaranteed, the litigation status of the investigation and control party and the suspect should be balanced, and when the marginal income generated by the right to silence is less than the marginal cost of the right to silence, At the time of the cost, the limitation of the right of silence to the criminal suspect and the defendant should be gradually increased; when the marginal income generated by the right to silence is equal to the marginal cost, the profit
【学位授予单位】：烟台大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D925.2
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本文编号：2447134
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