职务犯罪自首情节认定问题研究
发布时间：2018-11-23 16:35
【摘要】：自首情节认定一直是办理职务犯罪案件的重点,也是难点。法律和司法解释对如何认定自首有较为详细的规定，而由于执法者对法律法和司法解释的不同解读，在自首的认定方面存在较多的分歧及争议，，再加上司法实践本身的多样性、复杂性，在自首情节认定上存在诸多“说不清，道不明”，难以准确理解和把握的问题。例如自动投案中投案的“自动性”如何认定；投案后未及时如实供述犯罪事实能否认定为自首，司法解释规定的“办案机关已经掌握的犯罪事实”、“办案机关已掌握线索针对犯罪事实”以及“在办案机关调查谈话、讯问、采取调查措施或者强制措施期间，交代犯罪事实”应作何理解，以及由纪委监察机关在查办党员干部违纪违法案件时发现并移交给司法机关的职务犯罪案件，自首认定条件与司法机关侦查发现的职务犯罪案件有何不同。针对上述问题，笔者通过对现实案例的剖析，试图对职务犯罪案件自首认定中存在的疑难问题进行分析探索，在此基础上，结合相关刑法理论，提出可资借鉴的观点，以期对司法实践有一定的参考价值和指导意义。
[Abstract]:Voluntary surrender has always been the focus of crime cases, but also difficult. The law and judicial interpretation have more detailed provisions on how to identify voluntary surrender, but due to the different interpretations of law and judicial interpretation, there are many differences and disputes in the determination of voluntary surrender, plus the diversity of judicial practice itself. Complexity, there are many "unclear, unclear" in the identification of the circumstances, difficult to accurately understand and grasp the problems. For example, how to identify the "automatism" of surrender; Whether or not the facts of the crime can be identified as voluntary surrender after surrendering, whether or not the criminal facts already mastered by the organs handling the case as stipulated in the judicial interpretation, "the organs of the handling of cases have grasped clues against the facts of the crime" and "the investigation and talk at the organs handling the cases", What shall be the understanding of the facts of the crime during the interrogation, investigation or compulsory measures, and the cases of job-related crimes discovered and handed over to the judicial organs by the discipline inspection and supervision organs when investigating and handling the cases of party members and cadres violating discipline and law, What is the difference between the condition of voluntary surrender and the duty crime cases discovered by the judicial organs? In view of the above problems, the author tries to analyze and explore the difficult problems existing in the identification of duty crime cases through the analysis of practical cases. On this basis, combined with the relevant criminal law theory, the author puts forward some viewpoints that can be used for reference. With a view to judicial practice has a certain reference value and guiding significance.
【学位授予单位】：南昌大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D924.1
[Abstract]:Voluntary surrender has always been the focus of crime cases, but also difficult. The law and judicial interpretation have more detailed provisions on how to identify voluntary surrender, but due to the different interpretations of law and judicial interpretation, there are many differences and disputes in the determination of voluntary surrender, plus the diversity of judicial practice itself. Complexity, there are many "unclear, unclear" in the identification of the circumstances, difficult to accurately understand and grasp the problems. For example, how to identify the "automatism" of surrender; Whether or not the facts of the crime can be identified as voluntary surrender after surrendering, whether or not the criminal facts already mastered by the organs handling the case as stipulated in the judicial interpretation, "the organs of the handling of cases have grasped clues against the facts of the crime" and "the investigation and talk at the organs handling the cases", What shall be the understanding of the facts of the crime during the interrogation, investigation or compulsory measures, and the cases of job-related crimes discovered and handed over to the judicial organs by the discipline inspection and supervision organs when investigating and handling the cases of party members and cadres violating discipline and law, What is the difference between the condition of voluntary surrender and the duty crime cases discovered by the judicial organs? In view of the above problems, the author tries to analyze and explore the difficult problems existing in the identification of duty crime cases through the analysis of practical cases. On this basis, combined with the relevant criminal law theory, the author puts forward some viewpoints that can be used for reference. With a view to judicial practice has a certain reference value and guiding significance.
【学位授予单位】：南昌大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D924.1
【参考文献】
相关期刊论文 前10条
1 黄幸;;从利益衡量的角度看职务犯罪中的“自首”问题[J];法制与经济(下旬);2011年04期
2 吴s
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