新刑诉法中审查起诉阶段程序分流问题研究
发布时间：2019-06-16 19:19
【摘要】：审查起诉阶段的程序分流是指在刑事诉讼中的审查起诉阶段,检察官以替代性的方式对案件进行非刑罚化处理,而不再移送至审判机关进行审判,或者对案件分别采取简易程序、普通程序进行起诉的分流机制。在审查起诉阶段进行程序分流是司法实践发展的必然结果,同时,它还是充分尊重和保障人权的客观需要,是提升诉讼效率的有效途径。在我国的法律法规中,一直不存在“程序分流”这一定义,但是这并不代表着我国没有关于审查起诉阶段程序分流制度的相关规定,刑事诉讼法中的法定不起诉、酌定不起诉等均属于审查起诉阶段程序分流的具体方式。 本文中,笔者首先对审查起诉阶段程序分流的基本范畴进行了具体说明,从而展示了审查起诉阶段程序分流的基本内涵。然后分阶段说明了审查起诉阶段程序分流制度在我国的确立和发展：一是1979年刑事诉讼法中审查起诉阶段的程序分流制度是以起诉制度、不起诉制度、暂缓起诉制度构成的；二是1996年,刑事诉讼法进行了修正,审查起诉阶段的程序分流制度发展为由法定不起诉、酌定不起诉、证据不足不起诉、简易程序与普通程序分类公诉的基本框架构成。同时,暂缓起诉、刑事和解等制度也普遍存在于司法实践中；三是2012年,刑事诉讼法再次修正,并于2013年1月1日开始实施,刑事诉讼法修正后,审查起诉阶段的程序分流制度发展为由法定不起诉、酌定不起诉、证据不足不起诉、附条件不起诉、刑事和解、强制医疗、普通程序与简易程序分类公诉构成的基本框架,从而将在司法实践中收效较好的刑事和解制度、暂缓起诉制度等以法律的形式规范了下来。 随着刑事诉讼法的不断修正,我国审查起诉阶段的程序分流制度也在呈多元化趋势发展,分流的途径越来越多,检察官的自由裁量权也在不断的扩大。但是,我国审查起诉阶段的程序分流制度仍然存在一定的问题,如检察官的自由裁量空间较小,刑事和解、附条件不起诉制度的适用范围过窄等等。为了贯彻宽严相济的刑事政策,我们需要对审查起诉阶段程序分流制度逐步进行完善：一是扩大检察官的自由裁量权,健全监督制约机制；二是扩大附条件不起诉的适用范围；三是放宽酌定不起诉的适用标准,简化适用程序；四是统一刑事和解制度的适用标准。
[Abstract]:The procedural diversion in the stage of examination and prosecution refers to the diversion mechanism in which the prosecutor deals with the case in an alternative way without punishment, and no longer transfers it to the judicial organ for trial, or adopts summary procedure and ordinary procedure to prosecute the case separately. Procedural diversion in the stage of examination and prosecution is the inevitable result of the development of judicial practice. At the same time, it is also the objective need to fully respect and protect human rights, and it is an effective way to improve the efficiency of litigation. In the laws and regulations of our country, there has always been no definition of "procedural diversion", but this does not mean that there are no relevant provisions on the procedural diversion system in the stage of examination and prosecution. The legal non-prosecution and discretionary non-prosecution in the criminal procedure law all belong to the specific way of procedural diversion in the stage of examination and prosecution. In this paper, the author first explains the basic category of procedural diversion in the stage of examination and prosecution, thus showing the basic connotation of procedural diversion in the stage of examination and prosecution. Then it explains the establishment and development of the procedural diversion system in the review and prosecution stage in our country in stages: first, the procedural diversion system in the review and prosecution stage in the 1979 Criminal procedure Law is composed of the prosecution system, the non-prosecution system and the suspending prosecution system; Second, in 1996, the Criminal procedure Law was amended, and the procedural diversion system in the stage of examination and prosecution developed into the basic framework of legal non-prosecution, discretionary non-prosecution, insufficient evidence and classified public prosecution. At the same time, the suspension of prosecution, criminal reconciliation and other systems also widely exist in judicial practice; Third, in 2012, the Code of Criminal procedure was amended again and implemented on 1 January 2013. after the amendment of the Code of Criminal procedure, the system of procedural diversion in the review and prosecution phase developed into the basic framework of statutory non-prosecution, discretionary non-prosecution, lack of evidence, conditional non-prosecution, criminal reconciliation, compulsory medical treatment, general procedure and summary procedure classified public prosecution, Thus, the criminal reconciliation system, which has a good effect in judicial practice, and the system of suspending prosecution are regulated in the form of law. With the continuous revision of the criminal procedure law, the procedural diversion system in the stage of examination and prosecution in our country is also developing in a pluralistic trend, and there are more and more ways of diversion, and the discretion of prosecutors is also expanding. However, there are still some problems in the procedural diversion system in the stage of examination and prosecution in our country, such as the discretion of prosecutors is small, criminal reconciliation, the scope of application of conditional non-prosecution system is too narrow and so on. In order to carry out the criminal policy of combining leniency with severity, we need to gradually improve the procedural diversion system in the stage of examination and prosecution: first, expand the discretion of prosecutors and improve the mechanism of supervision and restriction; second, expand the scope of application of conditional non-prosecution; third, relax the applicable standards of discretionary non-prosecution and simplify the applicable procedures; and fourth, unify the applicable standards of the criminal reconciliation system.
【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
本文编号：2500773
[Abstract]:The procedural diversion in the stage of examination and prosecution refers to the diversion mechanism in which the prosecutor deals with the case in an alternative way without punishment, and no longer transfers it to the judicial organ for trial, or adopts summary procedure and ordinary procedure to prosecute the case separately. Procedural diversion in the stage of examination and prosecution is the inevitable result of the development of judicial practice. At the same time, it is also the objective need to fully respect and protect human rights, and it is an effective way to improve the efficiency of litigation. In the laws and regulations of our country, there has always been no definition of "procedural diversion", but this does not mean that there are no relevant provisions on the procedural diversion system in the stage of examination and prosecution. The legal non-prosecution and discretionary non-prosecution in the criminal procedure law all belong to the specific way of procedural diversion in the stage of examination and prosecution. In this paper, the author first explains the basic category of procedural diversion in the stage of examination and prosecution, thus showing the basic connotation of procedural diversion in the stage of examination and prosecution. Then it explains the establishment and development of the procedural diversion system in the review and prosecution stage in our country in stages: first, the procedural diversion system in the review and prosecution stage in the 1979 Criminal procedure Law is composed of the prosecution system, the non-prosecution system and the suspending prosecution system; Second, in 1996, the Criminal procedure Law was amended, and the procedural diversion system in the stage of examination and prosecution developed into the basic framework of legal non-prosecution, discretionary non-prosecution, insufficient evidence and classified public prosecution. At the same time, the suspension of prosecution, criminal reconciliation and other systems also widely exist in judicial practice; Third, in 2012, the Code of Criminal procedure was amended again and implemented on 1 January 2013. after the amendment of the Code of Criminal procedure, the system of procedural diversion in the review and prosecution phase developed into the basic framework of statutory non-prosecution, discretionary non-prosecution, lack of evidence, conditional non-prosecution, criminal reconciliation, compulsory medical treatment, general procedure and summary procedure classified public prosecution, Thus, the criminal reconciliation system, which has a good effect in judicial practice, and the system of suspending prosecution are regulated in the form of law. With the continuous revision of the criminal procedure law, the procedural diversion system in the stage of examination and prosecution in our country is also developing in a pluralistic trend, and there are more and more ways of diversion, and the discretion of prosecutors is also expanding. However, there are still some problems in the procedural diversion system in the stage of examination and prosecution in our country, such as the discretion of prosecutors is small, criminal reconciliation, the scope of application of conditional non-prosecution system is too narrow and so on. In order to carry out the criminal policy of combining leniency with severity, we need to gradually improve the procedural diversion system in the stage of examination and prosecution: first, expand the discretion of prosecutors and improve the mechanism of supervision and restriction; second, expand the scope of application of conditional non-prosecution; third, relax the applicable standards of discretionary non-prosecution and simplify the applicable procedures; and fourth, unify the applicable standards of the criminal reconciliation system.
【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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