我国“亲告罪”的立法完善
发布时间：2019-03-30 20:28
【摘要】：虽然亲告罪在当前我国刑法中只有五个条文,但是关于其规定却由来已久,早在唐代的法典中已有著述。最典型的莫过于关于父母和子女间“隐匿”减轻罪责的条文。中国优秀传统文化得以延续和继承,对亲告罪的规定正是其良好地体现。亲告罪涉及的犯罪较轻,大多是对个人的名誉或财产的侵害。况且,被害人和侵害人往往是特定关系人,这就与非亲告罪双方通常是互不相识的陌生人有所不同。如此,奠定了亲告罪的特殊制度性。亲告罪蕴涵着有价值的传统文化,其所代表的自由和效率等价值也与现代化的西方思想相吻合,具有重要的理论基础。同时,亲告罪的指导理念与我国人情社会的大环境相契合,具备存在的现实土壤。但是,正如开头所言,关于其规定过于简单,没有形成足够的系统性和完整性。近年来,基于对人权的保护,充分尊重个人自由等思想,与亲告罪的立法价值相契合。但是,完全依靠被害人进行诉讼与国家公权力是否介入、何时介入以及如何介入等问题,成为需要解决的难题。综合分析来看,亲告罪研究意义深远,但是我国关于亲告罪的制度规定较少,并且司法实践中出现的问题也亟待解决。那么,对亲告罪的完善就显得尤为重要。本文通过对亲告罪理论价值和实践基础的分析,肯定其存在的现实必要性,针对当前刑法中出现的一些制度缺陷,提出完善建议。主要包括三个部分:首先,对亲告罪的概念、性质、所存在的理论和实践基础进行阐述。指出亲告罪多适用于轻罪、侵犯的是私法益以及被害人和侵害人具有一定的特殊关系。接着阐述了亲告罪所体现的价值,即自由、秩序、正义和效率价值,对它们的具体分析,得出亲告罪的理论指导理念。亲告罪主要体现了对自由和效率价值的推崇,通过我国现实分析,得出亲告罪的设定具有理论和实践的基础。其次,指出亲告罪的现状,并分析它所存在的缺陷。从实体和程序两个方面来进行叙述,通过对当前立法上的规定分析,得出一些问题,包括亲告罪范围过窄,仅有五种罪名规定;并且侵占罪的告诉模式不当导致亲告罪的整体设定不均衡;被害人缺乏国家公权力的保护,取证困难并且侦查、检察机关容易误受理等问题。最后,针对前文所述问题的一些建议,包括适当扩大亲告罪的范围、完善侵占罪的告诉模式、完善其诉讼程序模式以及拓宽被害人的救济途径等。本文期望通过三个部分的描述,对亲告罪设定的基础、问题及完善建议进行分析,提出几点建议,对我国亲告罪的发展有所帮助。
[Abstract]:Although there are only five articles in the criminal law of our country at present, the stipulation of affidavit has a long history, and it has been written in the code of Tang Dynasty. Nothing is more typical than the provisions on concealment between parents and children. The fine traditional culture of China can be continued and inherited, and the stipulation of affidavit is a good embodiment. The crime of affidavit is relatively minor, most of which is against the reputation or property of the individual. Moreover, the victims and the infringers are often specific contacts, which is different from the strangers who do not know each other on both sides of the crime. In this way, laid down the special institutional nature of affidavit. Affidavit contains a valuable traditional culture, the freedom and efficiency represented by the crime is also consistent with the modern western thought, and has an important theoretical basis. At the same time, the guiding idea of affidavit coincides with the environment of human society in our country, and has the realistic soil of existence. But, as stated at the beginning, the rules are too simple to form sufficient systematicness and integrity. In recent years, based on the protection of human rights and full respect for individual freedom, it is consistent with the legislative value of affidavit. However, it is difficult to rely on the victim to intervene in litigation and state power, when to intervene and how to intervene. Comprehensive analysis shows that the research on the crime of affidavit is of far-reaching significance, but there are few regulations on the crime of affidavit in our country, and the problems appearing in the judicial practice need to be solved urgently. Then, the perfection of the crime of affidavit appears to be particularly important. Based on the analysis of the theoretical value and practical basis of the crime of affidavit, this paper affirms the realistic necessity of its existence, and puts forward some suggestions for improving the system defects in the current criminal law. It mainly includes three parts: firstly, it expounds the concept, nature, theory and practice foundation of affidavit. It is pointed out that the crime of affidavit is mostly applicable to misdemeanour, the infringement of private legal interests and the special relationship between the victim and the infringer. Then it expounds the value of affidavit, that is, freedom, order, justice and efficiency, analyzes them concretely, and draws the theoretical guiding idea of affidavit. Affidavit mainly embodies the value of freedom and efficiency. Through the analysis of the reality of our country, it is concluded that the establishment of affidavit is based on theory and practice. Secondly, it points out the status quo of affidavit, and analyzes its defects. From the two aspects of entity and procedure, through the analysis of the current legislation, we get some problems, including the narrow scope of affidavit, there are only five kinds of crime provisions; The improper telling mode of embezzlement crime leads to the imbalance of the overall setting of affidavit crime; the victim lacks the protection of the state public power, the difficulty of obtaining evidence and the investigation, and the procuratorial organ is prone to mistakenly accept it and so on. Finally, some suggestions for the problems mentioned above, including appropriate expansion of the scope of the crime of affidavit, improvement of the crime of embezzlement to tell the model, improve its procedural model and expand the victims of relief, and so on. Through the description of three parts, this paper hopes to analyze the foundation, problems and suggestions of the establishment of affidavit, and put forward some suggestions, which will be helpful to the development of affidavit in our country.
【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
本文编号：2450453
[Abstract]:Although there are only five articles in the criminal law of our country at present, the stipulation of affidavit has a long history, and it has been written in the code of Tang Dynasty. Nothing is more typical than the provisions on concealment between parents and children. The fine traditional culture of China can be continued and inherited, and the stipulation of affidavit is a good embodiment. The crime of affidavit is relatively minor, most of which is against the reputation or property of the individual. Moreover, the victims and the infringers are often specific contacts, which is different from the strangers who do not know each other on both sides of the crime. In this way, laid down the special institutional nature of affidavit. Affidavit contains a valuable traditional culture, the freedom and efficiency represented by the crime is also consistent with the modern western thought, and has an important theoretical basis. At the same time, the guiding idea of affidavit coincides with the environment of human society in our country, and has the realistic soil of existence. But, as stated at the beginning, the rules are too simple to form sufficient systematicness and integrity. In recent years, based on the protection of human rights and full respect for individual freedom, it is consistent with the legislative value of affidavit. However, it is difficult to rely on the victim to intervene in litigation and state power, when to intervene and how to intervene. Comprehensive analysis shows that the research on the crime of affidavit is of far-reaching significance, but there are few regulations on the crime of affidavit in our country, and the problems appearing in the judicial practice need to be solved urgently. Then, the perfection of the crime of affidavit appears to be particularly important. Based on the analysis of the theoretical value and practical basis of the crime of affidavit, this paper affirms the realistic necessity of its existence, and puts forward some suggestions for improving the system defects in the current criminal law. It mainly includes three parts: firstly, it expounds the concept, nature, theory and practice foundation of affidavit. It is pointed out that the crime of affidavit is mostly applicable to misdemeanour, the infringement of private legal interests and the special relationship between the victim and the infringer. Then it expounds the value of affidavit, that is, freedom, order, justice and efficiency, analyzes them concretely, and draws the theoretical guiding idea of affidavit. Affidavit mainly embodies the value of freedom and efficiency. Through the analysis of the reality of our country, it is concluded that the establishment of affidavit is based on theory and practice. Secondly, it points out the status quo of affidavit, and analyzes its defects. From the two aspects of entity and procedure, through the analysis of the current legislation, we get some problems, including the narrow scope of affidavit, there are only five kinds of crime provisions; The improper telling mode of embezzlement crime leads to the imbalance of the overall setting of affidavit crime; the victim lacks the protection of the state public power, the difficulty of obtaining evidence and the investigation, and the procuratorial organ is prone to mistakenly accept it and so on. Finally, some suggestions for the problems mentioned above, including appropriate expansion of the scope of the crime of affidavit, improvement of the crime of embezzlement to tell the model, improve its procedural model and expand the victims of relief, and so on. Through the description of three parts, this paper hopes to analyze the foundation, problems and suggestions of the establishment of affidavit, and put forward some suggestions, which will be helpful to the development of affidavit in our country.
【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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