刑事案卷移送制度与庭审实质化研究
发布时间：2019-05-29 03:05
【摘要】：刑事案卷移送制度和庭审实质化一直是我国理论界关注的热点问题。在我国凡是关于刑事案卷移送制度的研究大都会涉及到案卷移送制度对庭审实质化影响的问题。我国在2012年新的刑事诉讼法中,重新确立了全案移送制度,将自然而然地让人思考其对我国庭审实质化的影响。 案卷移送制度作为连接审前程序和审判程序的方式,在不同国家和地区主要有三种表现形式：全案移送制度,起诉状一本主义以及限制移送制度。而庭审实质化作为中国特殊语境下的产物,与庭审形式化、过场化相对应。不同的案卷移送制度,对庭审实质化的影响会有不同。 具体来说,大陆法系国家多采用全案移送制度,比如德国。为了实现庭审实质化,德国通过在庭审中贯彻直接言词原则与集中审理原则,在整个诉讼阶段赋予辩方充分的阅卷权和申请调查取证权,并且规定法官裁判理由的公开等措施保证庭审实质化的实现；当事人主义国家主要实行起诉状一本主义的案卷移送方式,比如美国就是起诉状一本主义的代表。为了实现庭审实质化,美国制定了证据开示、交叉询问等制度措施；意大利作为混合制诉讼模式的代表国家,其采取限制移送制度,并利用法官的双重身份、增强控辩双方的对坑等措施实现庭审实质化。 我国案卷移送制度在1979年是全案移送加庭前实质审查模式,这种模式下我国庭审形式化严重。1996年确立复印件主义移送方式,希望通过限制法官庭前接触的案卷范围解决庭审形式化问题,但是,由于庭后全案移送制度的诞生,依然没有改变我国庭审形式化严重的问题。2012年新刑事诉讼法重新确立全案移送制度,这不禁使我们深思仅仅通过改变案卷移送制度不能解决庭审形式化问题。 通过对我国历年案卷移送制度的演变以及其对我国庭审实质化的影响的研究可以看出导致我国庭审形式化的根本原因是法官阅卷审判主义。受犯罪控制理念和程序工具主义的影响,直接言词证据的缺失,法庭之外形成裁判的司法文化以及以阅卷为主的复审制度等四个方面是产生法官阅卷审判的深层次原因。立足于全案移送制度,确立审判中心主义、完善庭前会议制度、贯彻执行直接言词原则、塑造法官独立环境、强调判决说理等是实现我国庭审实质化的关键配套措施。
[Abstract]:The transfer system of criminal case file and the materialization of trial have always been hot issues in the theoretical circle of our country. In our country, the research on the transfer system of criminal case file involves the influence of case file transfer system on the quality of trial. In the new criminal procedure law of 2012, the whole case transfer system has been re-established, which will naturally make people think about its influence on the materialization of the trial in our country. As a way of connecting the pre-trial procedure and the trial procedure, the case file transfer system has three main forms in different countries and regions: the whole case transfer system, the prosecution form doctrine and the restriction transfer system. As the product of Chinese special context, the materialization of trial corresponds to the formalization and passing of trial. Different file transfer systems will have different effects on the quality of the trial. Specifically, civil law countries use the whole case transfer system, such as Germany. In order to realize the materialization of the trial, Germany gave the defense full right to read papers and apply for the right to investigate and obtain evidence through the implementation of the principle of direct speech and the principle of centralized trial in the trial. And stipulate the judge to decide the reason of the public and other measures to ensure the realization of the materialization of the trial; The litigant countries mainly carry out the case file transfer mode of pleadings, for example, the United States is the representative of the doctrine of prosecution. In order to realize the materialization of the trial, the United States has formulated some institutional measures, such as the disclosure of evidence, cross-examination and so on. Italy, as the representative country of the mixed system litigation mode, adopts the system of restricting the transfer, and makes use of the dual identity of the judge to strengthen the confrontation between the prosecution and the defense to realize the materialization of the trial. In 1979, the transfer system of the case file in our country was the mode of substantive examination before the whole case was transferred to the court. Under this mode, the formalization of the trial in our country is serious. In 1996, the photocopy doctrine transfer mode was established. It is hoped that the formal problem of trial will be solved by limiting the scope of pre-court contact of judges. However, due to the birth of the whole case transfer system after court, There is still no serious problem of changing the formalization of the trial in our country. In 2012, the new criminal procedure law re-established the whole case transfer system, which makes us ponder that the formal problem of the trial can not be solved only by changing the transfer system of the case file. Through the study of the evolution of the case file transfer system in our country over the years and its influence on the materialization of the trial in our country, we can see that the fundamental reason for the formalization of the trial in our country is the judge reading and judging doctrine. Under the influence of the concept of crime control and procedural instrumentalism, the lack of direct speech evidence, the formation of judicial culture outside the court and the review system based on marking are the deep reasons for the judge's reading and trial. Based on the whole case transfer system, the establishment of trial centralism, the improvement of the pre-court meeting system, the implementation of the principle of direct speech, the shaping of the independent environment of judges, and the emphasis on the reasoning of judgment are the key supporting measures to realize the materialization of the trial in our country.
【学位授予单位】：安徽大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D925.2
本文编号：2487586
[Abstract]:The transfer system of criminal case file and the materialization of trial have always been hot issues in the theoretical circle of our country. In our country, the research on the transfer system of criminal case file involves the influence of case file transfer system on the quality of trial. In the new criminal procedure law of 2012, the whole case transfer system has been re-established, which will naturally make people think about its influence on the materialization of the trial in our country. As a way of connecting the pre-trial procedure and the trial procedure, the case file transfer system has three main forms in different countries and regions: the whole case transfer system, the prosecution form doctrine and the restriction transfer system. As the product of Chinese special context, the materialization of trial corresponds to the formalization and passing of trial. Different file transfer systems will have different effects on the quality of the trial. Specifically, civil law countries use the whole case transfer system, such as Germany. In order to realize the materialization of the trial, Germany gave the defense full right to read papers and apply for the right to investigate and obtain evidence through the implementation of the principle of direct speech and the principle of centralized trial in the trial. And stipulate the judge to decide the reason of the public and other measures to ensure the realization of the materialization of the trial; The litigant countries mainly carry out the case file transfer mode of pleadings, for example, the United States is the representative of the doctrine of prosecution. In order to realize the materialization of the trial, the United States has formulated some institutional measures, such as the disclosure of evidence, cross-examination and so on. Italy, as the representative country of the mixed system litigation mode, adopts the system of restricting the transfer, and makes use of the dual identity of the judge to strengthen the confrontation between the prosecution and the defense to realize the materialization of the trial. In 1979, the transfer system of the case file in our country was the mode of substantive examination before the whole case was transferred to the court. Under this mode, the formalization of the trial in our country is serious. In 1996, the photocopy doctrine transfer mode was established. It is hoped that the formal problem of trial will be solved by limiting the scope of pre-court contact of judges. However, due to the birth of the whole case transfer system after court, There is still no serious problem of changing the formalization of the trial in our country. In 2012, the new criminal procedure law re-established the whole case transfer system, which makes us ponder that the formal problem of the trial can not be solved only by changing the transfer system of the case file. Through the study of the evolution of the case file transfer system in our country over the years and its influence on the materialization of the trial in our country, we can see that the fundamental reason for the formalization of the trial in our country is the judge reading and judging doctrine. Under the influence of the concept of crime control and procedural instrumentalism, the lack of direct speech evidence, the formation of judicial culture outside the court and the review system based on marking are the deep reasons for the judge's reading and trial. Based on the whole case transfer system, the establishment of trial centralism, the improvement of the pre-court meeting system, the implementation of the principle of direct speech, the shaping of the independent environment of judges, and the emphasis on the reasoning of judgment are the key supporting measures to realize the materialization of the trial in our country.
【学位授予单位】：安徽大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D925.2
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