刑民交叉程序适用问题研究
发布时间：2019-07-04 15:54
【摘要】：刑民交叉,一直是司法实践中的重点与难点问题,而刑民交叉程序如何启动,以及有着各自特色的、又有着共性的刑事诉讼程序与民事诉讼程序如何有效地融和并适用,直接决定了刑民交叉案件能否顺利启动并有效的审结。不可否认,"先刑后民"是我国目前现行刑民交叉案件程序适用的主要模式,俨然成为司法惯例,这是由我国重刑轻民传统思想根本导致的。随着经济的发展与社会的变迁,传统上的"先刑后民"在司法实践中暴露出了越来越多的弊端,法学家们与法律工作者也意识到这一点,提出将"先民后刑"、"刑民并行"作为与"先刑后民"同一并行,也作为刑民交叉的程序适用规则。从要素上分析,刑民交叉本质上系刑事与民事在法律事实或者法律要素方面进行的交叉,交叉的范围、难度、大小有所区别,导致交叉类型有所差异。本文以法律事实的要素进行划分,将刑民交叉划分为竞合型的刑民交叉与牵连型的刑民交叉;通过类比分析法,将刑民交叉程序适用的"先刑后民"、"先民后刑"、"刑民并行"三种程序,进行各自的利弊分析及价值讨论。通过制度上的完善,构想出刑民交叉程序适用方式,妥善处理刑民交叉案件启动程序问题。
[Abstract]:The cross-cutting of the people has always been the key and difficult problem in the judicial practice, and how to start the cross procedure of the people, and how to effectively melt and apply the criminal procedure and the civil procedure with their own characteristics. It is directly decided whether the cross-case of the criminal people can be successfully started and the conclusion can be effectively concluded. There is no denying that the "the post-execution of the people" is the main mode of the application of the current procedure of the cross-case of the current criminal in our country, and it is the judicial practice, which is caused by the traditional thought of the heavy-handed people in our country. With the development of economy and the change of society, the traditional "the post-execution of the people" has exposed more and more defects in the judicial practice, and the jurists and the legal workers also realized this, put forward the "first-to-people post-punishment" and the "the execution of the people in parallel" as the same parallel with the "the post-execution of the people", The rules for the application of the procedure of cross-cutting of the people are also applied. On the basis of the analysis of the elements, the cross-cutting of the cross-cutting, the difficulty and the size of the cross-cutting, the difficulty and the size of the criminal and the civil in the legal facts or the legal elements in the nature of the cross-cutting, resulting in a difference in the cross-type. This paper divides the elements of the legal fact, divides the people of the sentence into the cross of the competing types of the people, and then makes the analysis and value discussion of the advantages and disadvantages of the "the post-execution of the people", the "first-to-people post-punishment" and the "the execution of the people in parallel" which are applicable to the cross-procedure of the people by analogy. Through the perfection of the system, it is proposed that the application of the cross-procedure of the people and the people should properly handle the problem of the start-up procedure of the cross-case of the people.
【学位授予单位】：浙江大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D925.2;D925.1
本文编号：2510035
[Abstract]:The cross-cutting of the people has always been the key and difficult problem in the judicial practice, and how to start the cross procedure of the people, and how to effectively melt and apply the criminal procedure and the civil procedure with their own characteristics. It is directly decided whether the cross-case of the criminal people can be successfully started and the conclusion can be effectively concluded. There is no denying that the "the post-execution of the people" is the main mode of the application of the current procedure of the cross-case of the current criminal in our country, and it is the judicial practice, which is caused by the traditional thought of the heavy-handed people in our country. With the development of economy and the change of society, the traditional "the post-execution of the people" has exposed more and more defects in the judicial practice, and the jurists and the legal workers also realized this, put forward the "first-to-people post-punishment" and the "the execution of the people in parallel" as the same parallel with the "the post-execution of the people", The rules for the application of the procedure of cross-cutting of the people are also applied. On the basis of the analysis of the elements, the cross-cutting of the cross-cutting, the difficulty and the size of the cross-cutting, the difficulty and the size of the criminal and the civil in the legal facts or the legal elements in the nature of the cross-cutting, resulting in a difference in the cross-type. This paper divides the elements of the legal fact, divides the people of the sentence into the cross of the competing types of the people, and then makes the analysis and value discussion of the advantages and disadvantages of the "the post-execution of the people", the "first-to-people post-punishment" and the "the execution of the people in parallel" which are applicable to the cross-procedure of the people by analogy. Through the perfection of the system, it is proposed that the application of the cross-procedure of the people and the people should properly handle the problem of the start-up procedure of the cross-case of the people.
【学位授予单位】：浙江大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D925.2;D925.1
【参考文献】
相关期刊论文 前8条
1 杨兴培;;刑民交叉案件法理分析的逻辑进路[J];中国刑事法杂志;2012年09期
2 刘保玉;周彬彬;;民事责任与义务的界分问题再思考[J];政法论丛;2009年04期
3 陈瑞华;;刑事附带民事诉讼的三种模式[J];法学研究;2009年01期
4 万毅;;“先刑后民”原则的实践困境及其理论破解[J];上海交通大学学报(哲学社会科学版);2007年02期
5 吴爱辉;;事实婚姻与“重婚”关系之探讨——兼议民刑“重婚”之关系[J];西南民族大学学报(人文社科版);2006年03期
6 江伟,范跃如;刑民交叉案件处理机制研究[J];法商研究;2005年04期
7 陈兴良,胡建生,朱平,李克;关于“先刑后民”司法原则的反思[J];北京市政法管理干部学院学报;2004年02期
8 赵秉志,田宏杰;刑事司法正义论[J];中国刑事法杂志;2000年06期
相关硕士学位论文 前2条
1 李奇才;竞合型刑民交叉案件的处理程序研究[D];苏州大学;2015年
2 刘晶晶;刑民交叉案件处理机制研究[D];甘肃政法学院;2012年
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