侦查讯问同步录音录像资料的证据能力和证明力研究

发布时间：2019-06-24 14:06

【摘要】：长久以来，在我国刑事侦查阶段，侦查人员讯问犯罪嫌疑人通常以秘密方式进行。这时仅存在侦查人员和犯罪嫌疑人两方，而且犯罪嫌疑人经常处于人身自由受限制的羁押状态。在无有效的制约和监督机制这种情况下，这时犯罪嫌疑人的权利就很容易受到忽视和践踏，进而刑讯逼供、暴力取证等各种非法讯问行为时有发生，并且屡禁不止。为了切实规范侦查人员的侦查讯问行为，保障和维护犯罪嫌疑人的基本权利，2012年新修订的《刑事诉讼法》第一百二十一条正式确立了侦查讯问同步录音录像制度。任何制度的建立和运作都有赖于一系列相关制度作保障，对于一项在我国刚刚建立的侦查讯问同步录音录像制度来说更是如此。同时正如有的学者所说的那样，“证据法乃诉讼法的灵魂”。通过对侦查讯问同步录音录像资料的证据能力和证明能力这一方面进行研究，以求逐步规范和完善侦查讯问同步录音录像制度，这正是本文研究的主要目的。本篇文章总共分为三章，约三万字。第一章主要阐述介绍了侦查讯问同步录音录像制度的产生及在我国所引发的争议。首先简要介绍了侦查讯问同步录音录像制度在我国的产生、发展及其最终确立。随后分析了此制度在我国司法运行中存在的主要争议与分歧：这一部分分析了侦查讯问同步录音录像资料的证据能力问题，主要存在五种不同的理论观点；另外存在的主要问题是关于侦查讯问同步录音录像资料的证明能力判断问题。这一部分构成了本文的研究基础。第二章重点研究了侦查讯问同步录音录像资料的证据能力问题，为其予以“正名”。一是介绍了域外在侦查讯问同步录音录像资料的证据能力上的规定，大多数国家都把同步录音录像资料规定为书证，或者倾向于作为书证来对待；但也有观点认为应该把他们作为物证来规定。二是介绍了我国理论界关于同步录音录像资料证据能力之争，争议一方面表现在同步录音录像资料是否具有证据资格和能否作为证据来使用，另一面表现在同步录音录像资料证据类型上的争议，主要存在五种分歧的观点。三是本文关于同步录音录像资料证据能力之分析，笔者对同步录音录像资料进行证据属性上的研究，认为其可以在刑事诉讼活动中作为认定案件事实的证据使用，并且认为“双重证据属性说”在当前是比较合理的并进行了相应的探讨分析。四是同步录音录像资料证据能力之排除规则，通过相关的研究和结合我国司法实践，我们确立了三项主要的排除规定。第三章涉及侦查讯问同步录音录像资料的证明能力的研究。第一部分主要研究在同步录音录像资料与讯问笔录一致时，如何对其进行证明力方面的审查判断，认为此时同步录音录像资料无论作为犯罪嫌疑人供述和辩解、还是作为视听资料都具有直接的证明力。第二部分主要从同步录音录像资料与讯问笔录不一致时进行探讨，提出了我国司法实务界和理论界存在着主要三种不同的观点，认为我们在结合全案证据进行综合审查的同时，要着重对同步录音录像资料的真实可靠性进行查实。这一章最后还重点介绍了被告人翻供时同步录音录像资料证明力的审查判断问题，文中提出了我们首要任务是审查判断两种证据的可信度，从两者本身来说，他们两者的可信度并没有必然的高低强弱之分；因此我们不能机械地就规定讯问录音录像资料具有更强的证明力，，我们要做的关键是如何结合全案证据事实来进行审查和判断，以求解决在我国刑事司法实践中比较普遍的被告人翻供问题。
[Abstract]:For a long time, in the criminal investigation stage of our country, the investigators' interrogation of the criminal suspect is usually carried out in a secret way. At this time, only the investigators and the criminal suspect are present, and the suspects are often in the custody state where the freedom of the person is restricted. In the absence of effective restriction and supervision mechanism, the right of the criminal suspect is easy to be ignored and trampled, and the various kinds of illegal interrogation, such as the confession of torture and the evidence of violence, are frequent, and are often forbidden. In order to standardize the investigation and interrogation behavior of the investigators, to guarantee and maintain the basic rights of the criminal suspect, the new revision of the Criminal Procedure Law in 2012 has formally established the recording and recording system of the investigation and interrogation. The establishment and operation of any system depends on a series of related systems, especially for the synchronous recording and recording system of the investigation and interrogation that has just been established in our country. At the same time, as some scholars have said, the "The law of evidence is the soul of the procedural law". It is the main purpose of this paper to study the evidence ability and the proof ability of the investigation and interrogation of the audio and video data in order to standardize and perfect the recording system of the synchronous recording and recording of the investigation and interrogation. This article is divided into three chapters, about thirty thousand words. The first chapter mainly introduces the production of the synchronous recording and recording system of the investigation and interrogation and the competition in our country. First of all, the author briefly introduces the production and development of the synchronous recording and recording system of the investigation and interrogation in China and the final confirmation. This part analyses the main problems and differences of the system in the judicial operation of our country: this part analyzes the evidence ability problem of the investigation and interrogation of the synchronous recording and recording data, and there are five different theoretical views Point; The other main problem is to judge the ability of the proof ability of the synchronous recording and recording of the interrogation and interrogation. This part constitutes the study base of this paper. The second chapter focuses on the problem of the evidence ability of the investigation and interrogation of the audio and video data of the synchronous recording and recording, and it is

"name" . The first is to introduce the law on the ability of the outside to examine and examine the information of the synchronous recording and recording of the audio and video. Most of the countries have specified the information of the synchronous recording and recording as a book, or they tend to be treated as a certificate; however, there is a view that they should be used as material evidence. The second is to introduce the dispute about the evidence ability of the synchronous recording and video data in the theoretical circle of our country. On the one hand, it shows whether the recording material of the synchronous recording is qualified and can be used as evidence, and the other side is on the evidence type of the synchronous recording and video data. There are five main differences in the dispute The third is the analysis of the evidence ability of the synchronous recording and video data, and the author makes a study on the evidence property of the synchronous recording and video data, and finds that it can be used as a proof of the case fact in the criminal procedure. It is used, and the "double-evidence attribute theory" is considered to be reasonable and relevant Fourth, we have established three main lines through the related research and the practice of judicial practice in our country. In addition to the provisions, the third chapter relates to the certification of the recording of the recording of the synchronous recording of the interrogation and interrogation The first part of the research on the ability of the research. The first part mainly studies the judgment of how to prove the force of the synchronous recording and video data in the same time as the interview record, and it is considered that the synchronous recording and recording material has a straight line with the confession and the defense of the criminal suspect or as the audio-visual material. The second part, which is mainly from the time of the inconsistency of the data of the synchronous recording and the record of the examination, puts forward three different views on the judicial practice and the theoretical circle of the country, and we think that we should combine the evidence of the whole case. At the same time, it is important to focus on the authenticity and reliability of the synchronous recording and video data. This chapter also focuses on the question of the review and judgment of the proof force of the synchronous recording and video data when the accused is turned over for use. The first task in this paper is to review the credibility of the two kinds of evidence, from both of them, the credibility of both of them is not necessarily high. As a result, we can not mechanically examine and judge the information of the recording and recording, so as to solve the general defendant in the practice of criminal justice in our country.
【学位授予单位】：西南政法大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D925.2

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