论中国特色近亲属拒证权制度之构建
发布时间：2019-06-27 09:11
【摘要】：所谓近亲属拒证权,是指基于与犯罪嫌疑人、被告人存在特殊身份关系的人依法享有拒绝向司法机关提供证言的一种特殊权利。两大法系国家在很早的时候就对此权利作出了不同程度地规定。但是,在我国刑事诉讼法的历史上该制度却长期缺席。虽然2012年3月14日,“亲属出庭作证义务豁免权”成为我国新《刑事诉讼法》的一个亮点,即首次通过诉讼立法的形式在维护亲情、尊重和保障人权方面迈进了难能可贵的一步,无论是对我国全面推进社会主义法治建设,还是适应司法实践改革的需要都具有极为重要的现实意义。但是,该规定仅仅提到“亲属出庭作证义务豁免权”而已,既没有明确界定“亲属出庭作证义务豁免权”的基本要义,也没有明确规定享有此种豁免权的亲属范围、行使的条件、行使方式和程序保障等,即我国迄今为止并无完备的近亲属拒证权制度。我国司法实践现状要求我们必须跟上时代发展的步伐,传承我国古代已存在的容隐思想和理性借鉴国外先进的立法经验,构建中国特色的完备的近亲属拒证权制度势在必行。基于此,本文以“论中国特色近亲属拒证权制度之构建”作为选题,首先,基于近亲属拒证权制度的基本理论阐释,介绍了近亲属拒证权的概念、特征、价值以及在我国构建该制度的必要性 .和可行性。其次,深入剖析我国近亲属拒证权制度残缺的主要原因和弊端。再次,通过比较研究之方法论述两大法系在近亲属拒证权制度方面的基本特点及对我国的启示意义,最后,阐述构建具有中国特色的完备的近亲属拒证权制度的基本构想,企盼能对我国司法制度的改革和推进我国的法治化进程尽绵薄之力。全文主要包括以下四个部分:第一部分,阐释近亲属拒证权制度的基本理论。首先,阐述了近亲属拒证权的基本概念和特征。近亲属拒证权除具有上述基本内涵外,还具有以下特征:它是一种法定的权利;近亲属具有作证能力;此权享有者必须与被告人存在亲属关系;拒证的内容有法律条文可供遵循。其次,论述了构建该制度的主要价值:有利于体现法律的人性化;有利于体现法律注重人类基本情感;具有对基本人权的认可和保障价值。最后,论述了构建我国完备的近亲属拒证权制度的必要性和可行性。其必要性主要体现在如下几个方面:它是权利义务均衡的基本要求;它是权利与权力对弈的结果;它符合“法不强人所难”的观念;它与我国传统文化和社会基本伦理道德精神相符。构建我国完备的近亲属拒证权制度不仅具有上述必要性,而且是完全可行的。第二部分,深入剖析我国近亲属拒证权制度残缺的原因和弊端。我国的近亲属拒证权制度长期缺位,至今仍然残缺,其主要原因有:受义务本位思想居上之影响;受对旧的法律制度的过度批判之影响;受重实体法而轻程序法之影响。其弊端如下:侵犯个人自由,背离人性;阻碍社会和谐发展;降低证据质量,诉讼活动受阻;不利于树立法律的权威。第三部分,比较研究两大法系关于近亲属拒证权制度的立法规定与实践。虽然两大法系对该制度的立法规定不尽一致,各有特色,但在如下方面对构建具有中国特色的完备的近亲属拒证权制度不乏有重要的启示意义:必须明确规定该权利的行使主体范围;必须明确规定该权利的行使条件和方式;必须设置保障该权利得到真正实现的法定程序。第四部分,论述构建具有中国特色的完备的近亲属拒证权制度的设想。要切实构建符合中国特色的完备的近亲属拒证权制度,以进一步推进我国的司法改革,应当从具体内容安排和程序设置这两个方面入手。就具体内容安排而言:应当明确界定近亲属范围;应当明确行使此种权利的范围;对不适用该权利的特殊情形作出规定;将该项权利行使扩大到整个诉讼阶段。就程序设置而言,应当设置与该项制度相适应的如下程序:告知程序;申请程序;审核程序;放弃程序。从而使被告人的近亲属行使拒证权既有具体的法律规则可依,又有严格的程序予以保障。
[Abstract]:The right of the so-called close relatives is a special right to refuse to provide testimony to the judicial organ in accordance with the law on the basis of a person who has a special status relationship with the criminal suspect and the defendant. The two law-based countries have made a different degree of provision on this right in the early stages. However, in the history of our criminal procedure law, the system has been absent for a long time. Although on March 14,2012, the "the immunity of the relatives in court" became one of the highlights of our new Code of Criminal Procedure, that is, the first time that the form of litigation legislation has taken a valuable step in the maintenance of family relations, respect and human rights, whether to promote the construction of the socialist rule of law in a comprehensive way, It is of great practical significance to adapt to the needs of judicial practice reform. However, the provision only refers to the "the immunity of the relatives in court", which neither defines the basic meaning of the "the immunity of the relatives in court", nor specifies the scope of the relative to enjoy such immunity, the conditions of the exercise, the mode of exercise and the procedural guarantee, etc., that is, the system of the right of refusal of the close relatives to date. The present situation of judicial practice in our country requires that we keep up with the pace of the development of the times, to carry on the implicit thought and the rational use of the advanced legislative experience of the foreign countries, and to build a complete system of the right-to-close relatives of the close relatives with Chinese characteristics. On the basis of this, the article takes the "On the Construction of the System of the Protection of the Property of the Near-relatives with Chinese Characteristics;" as the subject, first, based on the basic theory explanation of the system of the close relatives, the concept, characteristic, value and the necessity of constructing the system in our country are introduced. And feasibility. Secondly, the main causes and disadvantages of the incomplete right system of the close relatives of our country are analyzed in depth. Thirdly, through the comparative study, this paper discusses the basic characteristics of the two-law system and the significance of the enlightenment to our country, and finally expounds the basic idea of constructing a complete and close-relative refusal system with Chinese characteristics. We are looking forward to the reform of the judicial system in our country and the development of our country's legal process. The full text mainly includes the following four parts: the first part, the interpretation of the basic theory of the close-relative refusal system. First of all, the basic concept and characteristics of the right of the close relatives' refusal of proof are described. In addition to the above basic connotation, the close relatives' refusal of proof also has the following characteristics: it is a legal right; the close relatives have the ability to testify; the right of the right is to be in the hands of the defendant; the content of the refusal is to be followed. Secondly, the main value of the construction of the system is discussed: it is beneficial to reflect the humanization of the law; it is beneficial to the reflection of the human basic emotion; and it has the recognition and guarantee value of the basic human rights. Finally, this paper discusses the necessity and feasibility of building a complete and close-relative refusal system in China. The necessity is mainly embodied in the following aspects: it is the basic requirement of the balance of rights and obligations; it is the result of the right and power to the law; it is in line with the idea that the law is not strong; it is in line with the traditional Chinese culture and the basic moral and moral spirit of our country. The system not only has the above-mentioned necessity, but also is completely feasible. The second part, in-depth analysis of the causes and disadvantages of the incomplete system of the close relatives of our country. The long-term absence of the right system of the close relatives of our country is still incomplete, and its main reasons are: the influence of the duty-based thought; the influence of the over-criticism of the old legal system; the influence of the light procedural law under the heavy substantive law. The disadvantages are as follows: the violation of the individual's freedom, the departure from the human nature, the development of social harmony, the reduction of the quality of the evidence, the obstruction of the proceedings, and the lack of authority to establish the law. The third part is to compare the legislative provisions and practice of the two legal systems about the system of the close relatives' refusal of proof. Although the two legal systems are not consistent with the legislative provisions of the system, it is of great significance to the establishment of a complete system of close relatives' refusal of proof with Chinese characteristics in the following respects: it is necessary to specify the scope of the exercise of this right; The conditions and means of the exercise of that right must be clearly defined; it is important to set up a legal procedure to guarantee the true realization of that right. The fourth part is to discuss the idea of building a complete system of close relatives' refusal of proof with Chinese characteristics. In order to further promote the judicial reform of our country, we should start with the specific content arrangement and the procedure. In that context of the specific content arrangement, it should be clear that the scope of the near-family should be clearly defined; the scope of the exercise of such right should be clearly exercised; a provision is made for exceptional circumstances that do not apply the right; the exercise of that right is extended to the whole of the proceedings. In the case of a procedure setting, the following procedure should be set to suit the system: a notification process; an application procedure; an audit procedure; a waiver process. In order to make the defendant's close relatives exercise the right to refuse, there are both specific legal rules and strict procedures to guarantee.
【学位授予单位】：华中师范大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D925.2
本文编号：2506669
[Abstract]:The right of the so-called close relatives is a special right to refuse to provide testimony to the judicial organ in accordance with the law on the basis of a person who has a special status relationship with the criminal suspect and the defendant. The two law-based countries have made a different degree of provision on this right in the early stages. However, in the history of our criminal procedure law, the system has been absent for a long time. Although on March 14,2012, the "the immunity of the relatives in court" became one of the highlights of our new Code of Criminal Procedure, that is, the first time that the form of litigation legislation has taken a valuable step in the maintenance of family relations, respect and human rights, whether to promote the construction of the socialist rule of law in a comprehensive way, It is of great practical significance to adapt to the needs of judicial practice reform. However, the provision only refers to the "the immunity of the relatives in court", which neither defines the basic meaning of the "the immunity of the relatives in court", nor specifies the scope of the relative to enjoy such immunity, the conditions of the exercise, the mode of exercise and the procedural guarantee, etc., that is, the system of the right of refusal of the close relatives to date. The present situation of judicial practice in our country requires that we keep up with the pace of the development of the times, to carry on the implicit thought and the rational use of the advanced legislative experience of the foreign countries, and to build a complete system of the right-to-close relatives of the close relatives with Chinese characteristics. On the basis of this, the article takes the "On the Construction of the System of the Protection of the Property of the Near-relatives with Chinese Characteristics;" as the subject, first, based on the basic theory explanation of the system of the close relatives, the concept, characteristic, value and the necessity of constructing the system in our country are introduced. And feasibility. Secondly, the main causes and disadvantages of the incomplete right system of the close relatives of our country are analyzed in depth. Thirdly, through the comparative study, this paper discusses the basic characteristics of the two-law system and the significance of the enlightenment to our country, and finally expounds the basic idea of constructing a complete and close-relative refusal system with Chinese characteristics. We are looking forward to the reform of the judicial system in our country and the development of our country's legal process. The full text mainly includes the following four parts: the first part, the interpretation of the basic theory of the close-relative refusal system. First of all, the basic concept and characteristics of the right of the close relatives' refusal of proof are described. In addition to the above basic connotation, the close relatives' refusal of proof also has the following characteristics: it is a legal right; the close relatives have the ability to testify; the right of the right is to be in the hands of the defendant; the content of the refusal is to be followed. Secondly, the main value of the construction of the system is discussed: it is beneficial to reflect the humanization of the law; it is beneficial to the reflection of the human basic emotion; and it has the recognition and guarantee value of the basic human rights. Finally, this paper discusses the necessity and feasibility of building a complete and close-relative refusal system in China. The necessity is mainly embodied in the following aspects: it is the basic requirement of the balance of rights and obligations; it is the result of the right and power to the law; it is in line with the idea that the law is not strong; it is in line with the traditional Chinese culture and the basic moral and moral spirit of our country. The system not only has the above-mentioned necessity, but also is completely feasible. The second part, in-depth analysis of the causes and disadvantages of the incomplete system of the close relatives of our country. The long-term absence of the right system of the close relatives of our country is still incomplete, and its main reasons are: the influence of the duty-based thought; the influence of the over-criticism of the old legal system; the influence of the light procedural law under the heavy substantive law. The disadvantages are as follows: the violation of the individual's freedom, the departure from the human nature, the development of social harmony, the reduction of the quality of the evidence, the obstruction of the proceedings, and the lack of authority to establish the law. The third part is to compare the legislative provisions and practice of the two legal systems about the system of the close relatives' refusal of proof. Although the two legal systems are not consistent with the legislative provisions of the system, it is of great significance to the establishment of a complete system of close relatives' refusal of proof with Chinese characteristics in the following respects: it is necessary to specify the scope of the exercise of this right; The conditions and means of the exercise of that right must be clearly defined; it is important to set up a legal procedure to guarantee the true realization of that right. The fourth part is to discuss the idea of building a complete system of close relatives' refusal of proof with Chinese characteristics. In order to further promote the judicial reform of our country, we should start with the specific content arrangement and the procedure. In that context of the specific content arrangement, it should be clear that the scope of the near-family should be clearly defined; the scope of the exercise of such right should be clearly exercised; a provision is made for exceptional circumstances that do not apply the right; the exercise of that right is extended to the whole of the proceedings. In the case of a procedure setting, the following procedure should be set to suit the system: a notification process; an application procedure; an audit procedure; a waiver process. In order to make the defendant's close relatives exercise the right to refuse, there are both specific legal rules and strict procedures to guarantee.
【学位授予单位】：华中师范大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D925.2
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