试论我国为营救的酷刑正当性
发布时间：2019-02-18 08:10
【摘要】：在西方民主思想已经被世界所接受,而酷刑的禁止也成为了人类的共识。911事件的爆发,给世界的人民带来了恐慌,酷刑重新回到人民的视野,能否对恐怖分子施加酷刑也引起刑法学和宪法学界的讨论。本文通过对比酷刑的定义,探讨为营救酷刑的基本含义,阐述为营救酷刑的性质以及目的等。并分析现有的伦理理论,以及我国宪法、刑法、警察法的相关规定以及理论基础,试论证我国为营救酷刑正当性。全文共分为四个部分:第一部分主要对酷刑、为营救酷刑概念进行基本界定。阐述为营救酷刑的性质、目的,根据酷刑的目的的不同将酷刑分为惩罚类酷刑、取证类酷刑以及为营救酷刑。并通过具体的案例将为营救酷刑分为一般侵犯公民生命权、危害公共安全以及恐怖活动类案件。第二部分主要考量现有的伦理理论对为营救酷刑的支持和反对之声,包括:功利主义,道义论以及适用道义论。对比各种伦理理论的优缺点,本文认为根据道义论的观点,在社会和秩序崩塌下,所有的道德和自由都会瓦解,缺乏说服力。适用道义论的水坝理论并未能说明门槛的高度界限。而从功利主义的视角,分析对犯罪嫌疑人实施酷刑的成本以及收益,能得到令人满意的结果。第三部分主要对宪法规定的生命权、尊严权进行考量。试比较酷刑实施者和被酷刑者之间的生命、尊严权价值。本文认为,在无辜者之间的生命、尊严权没有可比性。但国家在某些紧急情况下,一般的合法公民的人权尚有不同程度克减,而一个伤害他人生命、尊严的人,在对被害人的法益侵害尚未结束的情况下,相对于被害人,应当对犯罪行为人的生命、尊严权进行缩小评价。第四部分主要从刑法、警察法试说明为营救酷刑的正当化。以正当防卫为切入点,让其成立为营救酷刑的违法阻却事由,并通过分析目前警察能否成为正当防卫的主体几种学说:纯粹以及修正的公法说、区分说、刑法公法混合说、刑法说。我国警察法的相关规定,试说明为营救酷刑在刑法、警察法上的正当化。
[Abstract]:In the West, democratic ideas have been accepted by the world, and the prohibition of torture has become a common understanding of mankind. The outbreak of 9 / 11 brought panic to the people of the world, and torture returned to the eyes of the people. The possibility of torture against terrorists has also been debated in criminal and constitutional jurisprudence. By contrasting the definition of torture, this paper probes into the basic meaning of rescue torture, and expounds the nature and purpose of rescue torture. This paper also analyzes the existing ethical theories, as well as the relevant provisions and theoretical basis of our constitution, criminal law and police law, and tries to prove the legitimacy of the rescue of torture in our country. The paper is divided into four parts: the first part mainly defines the concept of torture in rescue. In order to rescue the nature and purpose of torture, torture is divided into punishment type, evidence type torture and rescue torture according to the different aims of torture. Through specific cases, the rescue torture can be classified as general violation of citizens' right to life, endangering public safety and terrorist activities. The second part mainly considers the support and opposition of the existing ethical theories to the rescue of torture, including utilitarianism, deonticism and the application of deontics. Comparing the merits and demerits of various ethical theories, this paper argues that according to the deontic view, all morality and freedom will collapse under the collapse of society and order, which is unconvincing. The deontic dam theory does not specify the threshold of the threshold. From the perspective of utilitarianism, the analysis of the costs and benefits of torture of criminal suspects can achieve satisfactory results. The third part mainly considers the right to life and dignity stipulated by the Constitution. Compare the value of the right to life and dignity between the torturer and the tortured. This paper argues that the right to dignity is not comparable among innocent people. However, in certain emergency situations, the human rights of legal citizens in general are subject to varying degrees of derogation, and a person who harms the lives and dignity of others, in cases where the legal interests of the victim are not over, as opposed to the victim, The right to life and dignity of the perpetrator should be reduced and evaluated. The fourth part mainly from the criminal law, the police law tries to explain to rescue the torture the justification. Taking legitimate defense as the starting point, it is established as the reason for the illegal obstruction of the rescue of torture, and by analyzing whether the police can become the main body of legitimate defense at present: pure and amended public law theory, distinction theory, the mixed theory of criminal law and public law, The criminal law says. The relevant provisions of our country's police law, try to explain to rescue torture in the criminal law, the police law is justified.
【学位授予单位】：武汉大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D924
本文编号：2425653
[Abstract]:In the West, democratic ideas have been accepted by the world, and the prohibition of torture has become a common understanding of mankind. The outbreak of 9 / 11 brought panic to the people of the world, and torture returned to the eyes of the people. The possibility of torture against terrorists has also been debated in criminal and constitutional jurisprudence. By contrasting the definition of torture, this paper probes into the basic meaning of rescue torture, and expounds the nature and purpose of rescue torture. This paper also analyzes the existing ethical theories, as well as the relevant provisions and theoretical basis of our constitution, criminal law and police law, and tries to prove the legitimacy of the rescue of torture in our country. The paper is divided into four parts: the first part mainly defines the concept of torture in rescue. In order to rescue the nature and purpose of torture, torture is divided into punishment type, evidence type torture and rescue torture according to the different aims of torture. Through specific cases, the rescue torture can be classified as general violation of citizens' right to life, endangering public safety and terrorist activities. The second part mainly considers the support and opposition of the existing ethical theories to the rescue of torture, including utilitarianism, deonticism and the application of deontics. Comparing the merits and demerits of various ethical theories, this paper argues that according to the deontic view, all morality and freedom will collapse under the collapse of society and order, which is unconvincing. The deontic dam theory does not specify the threshold of the threshold. From the perspective of utilitarianism, the analysis of the costs and benefits of torture of criminal suspects can achieve satisfactory results. The third part mainly considers the right to life and dignity stipulated by the Constitution. Compare the value of the right to life and dignity between the torturer and the tortured. This paper argues that the right to dignity is not comparable among innocent people. However, in certain emergency situations, the human rights of legal citizens in general are subject to varying degrees of derogation, and a person who harms the lives and dignity of others, in cases where the legal interests of the victim are not over, as opposed to the victim, The right to life and dignity of the perpetrator should be reduced and evaluated. The fourth part mainly from the criminal law, the police law tries to explain to rescue the torture the justification. Taking legitimate defense as the starting point, it is established as the reason for the illegal obstruction of the rescue of torture, and by analyzing whether the police can become the main body of legitimate defense at present: pure and amended public law theory, distinction theory, the mixed theory of criminal law and public law, The criminal law says. The relevant provisions of our country's police law, try to explain to rescue torture in the criminal law, the police law is justified.
【学位授予单位】：武汉大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D924
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