扰乱法庭秩序罪基本问题研究

发布时间：2018-07-30 07:36

【摘要】：法庭作为司法权运行的场所,既象征着司法秩序本身,也维持着以司法作为解决纠纷的手段的秩序。法庭秩序的规范和失范直接关系着司法权威的维护和法律尊严的彰显。近些年来,扰乱法庭秩序的现象频发,尤其是“死磕派”律师的横空出世,使得法庭秩序的失范情况更加复杂。因此,借助刑法的制裁力量来保障法庭秩序,维护司法权威,成为我国在建设法治国家语境下必不可少的内容。我国从1997年刑法典开始对扰乱法庭秩序的行为设专条进行刑法规制,但囿于立法技术的落后和司法制度的限制,在此后近二十年的法律实践中,对该罪的适用并没有达到其应有的效果,对司法权威的维护也收效不明显。近年来,辩审冲突的异化,尤其是“死磕派”律师这一法律工作者群体“异军”的突起,使得传统控、辩、审三方相互制约、分工合作、相互配合的模式受到冲击,法庭秩序失范问题严重。对此《刑法修正案(九)》第37条对扰乱法庭秩序罪进行了修改,扩容了其行为类型,以期应对日益复杂的法庭审理状况。针对刑修九这一扩容性立法,不少学者提出自己的担忧,认为本次修法急剧地扩容了扰乱法庭秩序罪的行为类型,有不当扩大犯罪圈之嫌,与刑法的自由保障机能可谓是东趋西步。本文的逻辑架构是:首先拟通过证明本罪的规定“符合刑法平等原则、刑法谦抑原则、比例原则”以及“符合维护司法权威的要求、符合预防犯罪的要求”来论证本罪的规定既是必要的,也是合理的。在价值之维为扰乱法庭秩序罪“正名”。其次,讨论本罪真正保护的客体是什么,通过对“法庭秩序”这一概念进行深刻理解来洞察法庭秩序失范的原因与规范的可能性。然后,拟对法庭秩序的保护落脚在对四种扰乱法庭秩序的行为类型,通过具体分析、阐解每种行为类型的构成特征,以期提高本罪在司法实践中的精准性、周延性和可操作性。
[Abstract]:As the place where judicial power operates, the court not only symbolizes the judicial order itself, but also maintains the judicial order as a means of resolving disputes. The norms and anomie of court order are directly related to the maintenance of judicial authority and the manifestation of legal dignity. In recent years, the frequent phenomenon of disturbing the court order, especially the emergence of the "dead kowao" lawyers, makes the court order more complicated. Therefore, it is necessary to protect the court order and maintain the judicial authority by means of the sanction power of criminal law in the context of building a country ruled by law. Since 1997, the criminal code of our country has established a special article to regulate the behavior of disturbing the order of the court. However, due to the backwardness of the legislative technique and the limitation of the judicial system, in the following two decades, the law has been practiced in the past two decades. The application of the crime does not achieve its due effect, and the maintenance of judicial authority is not obvious. In recent years, the alienation of the conflict of debate and trial, especially the emergence of "different armies", a group of legal workers, such as "dead kowao" lawyers, has impacted the traditional mode of controlling, debating and adjudicating the three parties to restrict each other, cooperate with each other and cooperate with each other. The court order is out of order. Article 37 of the Criminal Law Amendment (9) modifies the crime of disturbing the order of the court and expands its type of behavior in order to cope with the increasingly complex court trial situation. With regard to the expanded legislation of nine criminal amendments, many scholars have raised their concerns, saying that the law has sharply expanded the types of acts that disturb the order of the court, and it is suspected that the crime circle has been improperly expanded. And the free safeguard function of criminal law can be described as "moving in the east and west". The logical framework of this paper is as follows: firstly, the provisions of this crime are proposed to conform to the principle of equality of criminal law, the principle of modesty of criminal law, the principle of proportionality and the requirement of safeguarding judicial authority. Meeting the requirements of crime prevention "to prove the provisions of this crime is not only necessary, but also reasonable." In the dimension of value for the crime of disturbing the order of the court, "correct name". Secondly, the author discusses what the object of this crime really protects, and through the deep understanding of the concept of "court order", it can find out the causes of the disorder of the court order and the possibility of the norm. Then, the author intends to protect the court order in the four kinds of behavior types that disturb the court order. Through the concrete analysis, it explains the constitution characteristics of each kind of behavior type, in order to improve the precision, circumference and maneuverability of this crime in the judicial practice.
【学位授予单位】：吉林大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D924.3

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