警察行政执法中最小使用武力原则研究
发布时间：2018-08-29 13:22
【摘要】： 警察的武力使用权和武力行为问题,历来是人们关注的问题,也是舆论、媒体所关注的热点问题,究其原因,不仅是因为当前法治化的进程中人们的权利意识普遍提高,而且因为警察实施武力行为必然侵害相对人的人身权利,这种侵害可能造成的结果是什么呢?是造成相对人暂时痛苦、受伤、致残甚至极端地——死亡。因此从限止公权力、保障公民私权利的角度出发,必然要求对警察的武力使用权进行严格地限止,对警察武力行为进行严格地规制,最小地使用武力。 诚然,警察在执行公务活动中为保护公众利益免遭侵害或者使自身免遭不法侵袭时,有权实施武力行为以制止和消除此种危险状态,但武力行为必须是适度的和符合法定程序的。尤其是使用枪支这类致命性的高危武器时,更应当严格地遵守法律的规定,需要警察即时判断三个因素,一是警察对于实际发生的危险状态事态严重性程度的判断,二是警察根据这种状态选择使用何种武力手段的判断,三是采用相应的武力手段后对相对人造成何种程度伤害的判断。判别这三个因素对警察个体在执行公务过程中的要求其实是相当高的。而我国现有法律制度对警察使用武力的保障还很薄弱,法律规定还太过原则,不好操作。我国警察使用警械和武器的法律依据是《人民警察法》和《人民警察使用警械和武器条例》的有关规定,但法律的规定仅仅是原则性的,到了每一个具体情况需要人民警察区别情况对待,即根据上述的三个“变量”进行具体情况具体分析。立法上的不足使得警察在实际工作中往往无所适从,要么在出现较轻微和一般危险状态时错误地选择高等级的武力行为手段,造成相对人受伤、致残、死亡的结果,要么是出现了袭警等高危状态而往往持“多一事不如少一事”的态度,不敢使用武力,导致警察受伤甚至牺牲。 由此可见,不当地使用武力,既会给人民群众的生命安全带来严重的威胁,也可能给人民警察造成伤害。警察应当是在确保公共利益的前提下,采用最小的武力来制服相对人。本论文试图从分析我国警察武力行为的现状角度入手,来探究警察行政执法中最小使用武力原则的制度构建问题,主要从以下几个方面来阐述: 首先引言部分我是从发生在我国和英国的两起警察使用武力的案例中提出问题:“警察在何种紧急状态下可以动用武力?”“可以动用何种武力?”“动用武力到何种程度?”这些问题的提出旨在引发对我国警察武力使用现有体制的思考,从而提出最小使用武力的规则应当在我国进行构建。 第一章围绕警察行政行为中的特殊表现形式——武力行为进行探究,对警察行政权、警察武力行为的概念和特征进行了界定。 第二章主要是最小使用武力原则的规范与实证分析,论述了最小使用武力原则的定义、渊源及与其他法律原则之间的关系,从它的理论和法律渊源中可以看出,该原则与宪法的人权保障原则、行政法的法律优位和保留原则、行政法的比例原则等都是一脉相承的,是警察动用武力必须遵守的原则;同时从建立一支高素质的警队这个角度讲,也需要把该原则纳入教育培训的计划,提高实战中遵循该原则行事的技能。从而证明以最小使用武力的原则构建我国警察使用武力制度是必要且可行的。 第三章谈我国警察在实施武力行为时存在的问题及其严重的危害性,分析存在这些问题的原因——除了部分警察个体素质、理念、知识、技能存在缺陷外,更为重要的原因是我国的警察武力使用制度构建上存在问题,立法上太过原则化,不好操作,使得警察在执行公务的过程中往往无所适从;执法监督不力,使得部分警察使用武力时犹如“脱缰的野马”般肆无忌惮;警察管理体制落后,对警察不能进行有针对性的培训;执法理念不端正,不以人为本等。 第四章是本文的重点,主要是针对上述危害性极强的现状,必须从司法认识、立法、执法、事后评价机制和被武力行为伤害的相对人的救济制度等法律制度着手,构建我国警察武力行为中最小武力原则的法律制度构建问题。司法认识上着重解决阻却警察武力行为违法性的法律理论,警察武力行为的性质不是正当防卫而是职务防卫,是一种职权行为。立法上要明确警察可以动用武力的危急状态的具体标准,即“临界点”问题和武力手段的选择问题。执法上要针对不同等次的危急状态选择不同等次的武力手段。事后评价是警察使用武力后的内部报告与向法律监督部门的报告问题。救济制度是指要保障被侵害的相对人的司法救济和诉讼的权利。
[Abstract]:The police's right to use force and the conduct of force have always been a matter of concern to people, and also a hot issue of public opinion and media. The reason is not only because people's awareness of rights has been generally raised in the process of the rule of law, but also because the police's conduct of force is bound to infringe on the personal rights of the counterpart, and this infringement is possible. What is the result? It causes temporary pain, injury, disability and even extreme death. Therefore, from the perspective of limiting public power and protecting the private rights of citizens, it is necessary to strictly restrict the use of force by the police, strictly regulate the use of force by the police and minimize the use of force.
It is true that the police have the right to carry out acts of force to stop and eliminate such dangerous conditions in order to protect the public interest from infringement or to protect themselves from unlawful attacks in the course of their official activities, but such acts must be appropriate and in accordance with legal procedures. In particular, the use of lethal and dangerous weapons such as firearms should be more stringent. Complying with the law requires the police to judge three factors immediately. One is the severity of the actual dangerous state of affairs. The other is the judgment of what kind of force the police choose to use according to the situation. The third is the judgment of the degree of injury to the relative person after using the corresponding means of force. However, the existing legal system in China still has a weak guarantee for the use of force by the police. The legal basis for the use of police equipment and weapons by the police in China is the People's Police Law and the People's Police Weapons Rules. However, the provisions of the law are only principled in nature, and each specific case requires the people's police to treat it differently, that is, to make a specific analysis according to the three "variables" mentioned above. In the state of state, the wrong choice of high-level means of force leads to injury, disability and death of the relative person, or the emergence of a high-risk state such as attacking the police, often holding the attitude of "more than less" and daring not use force, resulting in injury or even sacrifice of the police.
It can be seen that the improper use of force will not only pose a serious threat to the lives of the people, but also may cause harm to the people's police. The system construction of the principle of minimum use of force in police administrative law enforcement is expounded from the following aspects:
In the first part, I put forward the questions from two cases of police force in China and Britain: "What kind of emergency can the police use force?" "What kind of force can be used?" "To what extent can the force be used?" "The purpose of these questions is to initiate the existing system of police force in China. Therefore, the rule of minimum use of force should be constructed in China.
In the first chapter, the author explores the special form of the police administrative act-the act of force, and defines the concepts and characteristics of the police administrative power and the act of force.
The second chapter is mainly about the norm and empirical analysis of the principle of minimum use of force. It discusses the definition of the principle of minimum use of force, its origin and the relationship between it and other legal principles. From its theoretical and legal sources, we can see that the principle is related to the principle of human rights protection in the Constitution, the principle of legal priority and retention of administrative law, and the ratio of administrative law to administrative law. At the same time, from the point of view of establishing a high-quality police force, it is also necessary to incorporate the principle into the education and training program to improve the skills of following the principle in actual combat, thus proving that the principle of minimum use of force should be used to construct the police force in China. The system is necessary and feasible.
The third chapter talks about the problems and the serious harmfulness of the police force in our country, and analyzes the reasons for these problems - apart from the defects of some police individual qualities, ideas, knowledge and skills, the more important reason is that there are problems in the construction of the police force use system and the legislation is too principled. It is not easy to operate, so that the police are often at a loss in the course of executing their official duties; weak law enforcement supervision, making some police use force like "runaway wild horse" wanton; backward police management system, the police can not be targeted training; incorrect law enforcement concept, people-oriented and so on.
The fourth chapter is the focus of this article, mainly in view of the above-mentioned extremely harmful status quo, we must start from the judicial understanding, legislation, law enforcement, post-evaluation mechanism and the relative relief system of the injured by the acts of force, to build the legal system of the principle of minimum force in the act of police force in our country. It is an act of power and authority that the nature of police force is not legitimate defense but post defense. The specific criteria of the critical state in which police force can be used should be clearly defined in legislation, that is, the "critical point" problem and the choice of force means. Post-mortem evaluation is the problem of internal reporting and reporting to the legal supervision department after the police use of force. Relief system means to protect the infringed relative's judicial relief and litigation rights.
【学位授予单位】：华东政法学院
【学位级别】：硕士
【学位授予年份】：2007
【分类号】：D631.4;D922.14
本文编号：2211331
[Abstract]:The police's right to use force and the conduct of force have always been a matter of concern to people, and also a hot issue of public opinion and media. The reason is not only because people's awareness of rights has been generally raised in the process of the rule of law, but also because the police's conduct of force is bound to infringe on the personal rights of the counterpart, and this infringement is possible. What is the result? It causes temporary pain, injury, disability and even extreme death. Therefore, from the perspective of limiting public power and protecting the private rights of citizens, it is necessary to strictly restrict the use of force by the police, strictly regulate the use of force by the police and minimize the use of force.
It is true that the police have the right to carry out acts of force to stop and eliminate such dangerous conditions in order to protect the public interest from infringement or to protect themselves from unlawful attacks in the course of their official activities, but such acts must be appropriate and in accordance with legal procedures. In particular, the use of lethal and dangerous weapons such as firearms should be more stringent. Complying with the law requires the police to judge three factors immediately. One is the severity of the actual dangerous state of affairs. The other is the judgment of what kind of force the police choose to use according to the situation. The third is the judgment of the degree of injury to the relative person after using the corresponding means of force. However, the existing legal system in China still has a weak guarantee for the use of force by the police. The legal basis for the use of police equipment and weapons by the police in China is the People's Police Law and the People's Police Weapons Rules. However, the provisions of the law are only principled in nature, and each specific case requires the people's police to treat it differently, that is, to make a specific analysis according to the three "variables" mentioned above. In the state of state, the wrong choice of high-level means of force leads to injury, disability and death of the relative person, or the emergence of a high-risk state such as attacking the police, often holding the attitude of "more than less" and daring not use force, resulting in injury or even sacrifice of the police.
It can be seen that the improper use of force will not only pose a serious threat to the lives of the people, but also may cause harm to the people's police. The system construction of the principle of minimum use of force in police administrative law enforcement is expounded from the following aspects:
In the first part, I put forward the questions from two cases of police force in China and Britain: "What kind of emergency can the police use force?" "What kind of force can be used?" "To what extent can the force be used?" "The purpose of these questions is to initiate the existing system of police force in China. Therefore, the rule of minimum use of force should be constructed in China.
In the first chapter, the author explores the special form of the police administrative act-the act of force, and defines the concepts and characteristics of the police administrative power and the act of force.
The second chapter is mainly about the norm and empirical analysis of the principle of minimum use of force. It discusses the definition of the principle of minimum use of force, its origin and the relationship between it and other legal principles. From its theoretical and legal sources, we can see that the principle is related to the principle of human rights protection in the Constitution, the principle of legal priority and retention of administrative law, and the ratio of administrative law to administrative law. At the same time, from the point of view of establishing a high-quality police force, it is also necessary to incorporate the principle into the education and training program to improve the skills of following the principle in actual combat, thus proving that the principle of minimum use of force should be used to construct the police force in China. The system is necessary and feasible.
The third chapter talks about the problems and the serious harmfulness of the police force in our country, and analyzes the reasons for these problems - apart from the defects of some police individual qualities, ideas, knowledge and skills, the more important reason is that there are problems in the construction of the police force use system and the legislation is too principled. It is not easy to operate, so that the police are often at a loss in the course of executing their official duties; weak law enforcement supervision, making some police use force like "runaway wild horse" wanton; backward police management system, the police can not be targeted training; incorrect law enforcement concept, people-oriented and so on.
The fourth chapter is the focus of this article, mainly in view of the above-mentioned extremely harmful status quo, we must start from the judicial understanding, legislation, law enforcement, post-evaluation mechanism and the relative relief system of the injured by the acts of force, to build the legal system of the principle of minimum force in the act of police force in our country. It is an act of power and authority that the nature of police force is not legitimate defense but post defense. The specific criteria of the critical state in which police force can be used should be clearly defined in legislation, that is, the "critical point" problem and the choice of force means. Post-mortem evaluation is the problem of internal reporting and reporting to the legal supervision department after the police use of force. Relief system means to protect the infringed relative's judicial relief and litigation rights.
【学位授予单位】：华东政法学院
【学位级别】：硕士
【学位授予年份】：2007
【分类号】：D631.4;D922.14
【参考文献】
相关硕士学位论文 前1条
1 余会笔;论警察行政权的行使及其规范[D];郑州大学;2005年
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