第二类自诉案件研究
发布时间：2018-11-17 09:30
【摘要】：在人类历史上，自诉是最早出现的人们解决纠纷的方式。到了现代社会，虽然自诉制度的统治地位已逐渐被公诉所取代，但在有些国家它尚未完全退出刑事诉讼领域。我国在刑诉法修改时极大的扩张了自诉案件的范围，然而在司法实践中大量的轻微刑事案件是通过公诉程序解决的，而不是通过自诉程序解决。不科学的制度设计是导致立法初衷和司法实践相违背的原因之一。在我国短时间内还要继续保留自诉制度的基础上，如何通过科学的制度设计达到最大限度的保障当事人的权益和节约宝贵的司法资源的目的。我国关于自诉程序的规定模糊、不完善，本文将针对目前自诉程序规定存在的问题展开论述。本文提出：首先，自诉案件的范围过于宽泛，极大的增加了法院的办案压力；公诉权和自诉权行使冲突；使用不同的程序导致不同的诉讼结果。其次，，应在范围上加以限定；理清自诉权和公诉权的复杂关系；在第二类自诉案件适用公诉程序时引入和解制度。前者是阐述我国目前第二类自诉案件存在的表面问题和深层问题，意图从权利的起源上论证自诉权和公诉权的行使关系，并同时由自诉权和公诉权并存引出程序的可选择性。后者则是就目前存在的问题提出自己的见解，充分尊重被害人的程序选择权同时不损害公共利益，提出当自诉权和公诉权行使发生冲突如何解决。具体的制度设计是：对第二类自诉案件的案件范围做适当修正；完善公安机关的告知制度，帮助被害人做出理智的选择；检察机关的自诉担当、发挥检察机关的法律监督作用；在侦查、起诉、审判阶段适用和解制度同时对侦查阶段的和解作严格限制，防止权力滥用。本文的创新性在于：不赞同将侵犯知识产权的轻微犯罪全部纳入公诉范围的传统观点；不讨论自诉权与公诉权何者优先，而是基于被害人的程序选择权为基点；突出检察机关在自诉案件中的全方位监督作用，打破自诉案件仅限于自诉人和法院的局面；针对“同案不同判”现象频发，适用公诉程序处理第二类自诉案件时适用和解制度。
[Abstract]:In human history, private prosecution is the earliest way to resolve disputes. In modern society, although the dominant position of private prosecution system has been gradually replaced by public prosecution, in some countries it has not completely withdrawn from the field of criminal proceedings. In our country, the scope of private prosecution cases is greatly expanded when the Criminal procedure Law is amended. However, in judicial practice, a large number of minor criminal cases are solved by public prosecution procedure, not by private prosecution procedure. Unscientific system design is one of the reasons leading to the violation of legislative intention and judicial practice. On the basis of maintaining the private prosecution system in a short period of time, how to ensure the rights and interests of the parties and save the valuable judicial resources through the scientific system design. The stipulation of private prosecution procedure in our country is vague and imperfect. This article will discuss the existing problems of private prosecution procedure. First of all, the scope of private prosecution cases is too broad, which greatly increases the pressure on the court to handle cases; the conflict between the exercise of the right of public prosecution and the right to appeal; the use of different procedures lead to different litigation results. Secondly, we should limit the scope, clarify the complex relationship between the private prosecution and the public prosecution, and introduce the reconciliation system when the public prosecution procedure is applied in the second kind of private prosecution cases. The former is to expound the superficial and deep problems existing in the second kind of private prosecution cases in our country at present, with the intention to demonstrate the relationship between the exercise of private prosecution right and public prosecution right from the origin of right, and at the same time to draw the optional procedure from the coexistence of private prosecution right and public prosecution right. The latter is to put forward their own views on the existing problems, fully respect the victim's right to choose procedure without harming public interests, and put forward how to resolve the conflict between the exercise of the right of private prosecution and the exercise of the right of public prosecution. The specific system design is as follows: making appropriate amendments to the scope of the second type of private prosecution cases; perfecting the public security organ's informing system to help the victims to make rational choices; the procuratorial organs' private prosecution to play the role of legal supervision of the procuratorial organs; In the investigation, prosecution and trial stage, the system of reconciliation should be applied and the reconciliation in the investigation stage should be strictly restricted to prevent abuse of power. The innovation of this paper lies in the following aspects: it does not agree with the traditional view that the minor crime of infringing intellectual property rights should be brought into the scope of public prosecution, and does not discuss which rights of private prosecution and the right of public prosecution take precedence, but based on the procedural option of the victim; In order to break the situation that private prosecution cases are limited to private prosecution and the court, the public prosecution procedure should be applied to deal with the second kind of private prosecution cases, and the reconciliation system should be applied when the phenomenon of "different judgments in the same case" occurs frequently.
【学位授予单位】：辽宁大学
【学位级别】：硕士
【学位授予年份】：2013
【分类号】：D925.2
本文编号：2337297
[Abstract]:In human history, private prosecution is the earliest way to resolve disputes. In modern society, although the dominant position of private prosecution system has been gradually replaced by public prosecution, in some countries it has not completely withdrawn from the field of criminal proceedings. In our country, the scope of private prosecution cases is greatly expanded when the Criminal procedure Law is amended. However, in judicial practice, a large number of minor criminal cases are solved by public prosecution procedure, not by private prosecution procedure. Unscientific system design is one of the reasons leading to the violation of legislative intention and judicial practice. On the basis of maintaining the private prosecution system in a short period of time, how to ensure the rights and interests of the parties and save the valuable judicial resources through the scientific system design. The stipulation of private prosecution procedure in our country is vague and imperfect. This article will discuss the existing problems of private prosecution procedure. First of all, the scope of private prosecution cases is too broad, which greatly increases the pressure on the court to handle cases; the conflict between the exercise of the right of public prosecution and the right to appeal; the use of different procedures lead to different litigation results. Secondly, we should limit the scope, clarify the complex relationship between the private prosecution and the public prosecution, and introduce the reconciliation system when the public prosecution procedure is applied in the second kind of private prosecution cases. The former is to expound the superficial and deep problems existing in the second kind of private prosecution cases in our country at present, with the intention to demonstrate the relationship between the exercise of private prosecution right and public prosecution right from the origin of right, and at the same time to draw the optional procedure from the coexistence of private prosecution right and public prosecution right. The latter is to put forward their own views on the existing problems, fully respect the victim's right to choose procedure without harming public interests, and put forward how to resolve the conflict between the exercise of the right of private prosecution and the exercise of the right of public prosecution. The specific system design is as follows: making appropriate amendments to the scope of the second type of private prosecution cases; perfecting the public security organ's informing system to help the victims to make rational choices; the procuratorial organs' private prosecution to play the role of legal supervision of the procuratorial organs; In the investigation, prosecution and trial stage, the system of reconciliation should be applied and the reconciliation in the investigation stage should be strictly restricted to prevent abuse of power. The innovation of this paper lies in the following aspects: it does not agree with the traditional view that the minor crime of infringing intellectual property rights should be brought into the scope of public prosecution, and does not discuss which rights of private prosecution and the right of public prosecution take precedence, but based on the procedural option of the victim; In order to break the situation that private prosecution cases are limited to private prosecution and the court, the public prosecution procedure should be applied to deal with the second kind of private prosecution cases, and the reconciliation system should be applied when the phenomenon of "different judgments in the same case" occurs frequently.
【学位授予单位】：辽宁大学
【学位级别】：硕士
【学位授予年份】：2013
【分类号】：D925.2
【参考文献】
相关期刊论文 前3条
1 陈晓明;;论修复性司法[J];法学研究;2006年01期
2 谢晖;;论“第二类自诉案件”诉权行使中的相关问题[J];理论界;2008年07期
3 刘英俊;中德刑事自诉制度比较研究[J];绵阳师范学院学报;2005年03期
本文编号：2337297
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