刑事法治视野中的公检法关系

发布时间：2018-01-31 03:19

本文关键词： 分工配合制约原则程序正义流水作业司法审查刑事法治　出处：《中国政法大学》2010年硕士论文　论文类型：学位论文

【摘要】： 我国刑事诉讼程序是建立在公、检、法三机关“分工负责、互相配合、互相制约”(简称分工配合制约)这一宪法性刑事诉讼原则的基础之上的。在刑事法治的视野中考察这一原则,联系刑事司法实践,发现这一原则有悖于刑事诉讼的职能配置规律,导致了侦查阶段成为整个刑事诉讼活动的中心阶段,在实践中引发了一系列矛盾和问题。本文第一章首先从历史的角度,回顾了我国古代到现代的司法体系流变,对我国传统司法思想进行了分析。历史上的制度和思想会作为一种民族文化传统而保留在人们的思想当中,但我们现代人的法律观念常常是一个复杂的综合体,这更与我国过去一百多年的历史有关。正是由于复杂的社会历史背景及对刑事诉讼目的的片面认识,导致我国刑事诉讼体系中侦查、检察和审判机关的分工合作制约关系。这种职权配置既体现了权力制约,又对有效打击犯罪具有重要意义。第二章针对现行公检法三机关关系在实践中产生的问题,进行了总体评价与法理剖析,指出这种三道工序式的诉讼结构存在着结构性缺陷,导致在三机关相互关系配置上存在严重的功能失衡、逻辑混乱,实践中导致过于强调配合,相互制约不够,人权保障不力。第三章从分工配合制约原则的内在要求出发,对这一原则进行了全面考察。联系当前刑事诉讼的实践,主要对警检之间的制约关系、检法之间的配合与制约关系、警法关系定位缺失进行了详细的剖析与反思,指出了其蕴含及衍生出来的消极作用。第四章对两大法系司法体系中侦、控、审三机关的关系进行了简要的介绍和剖析,主要以德、日、英、美等典型国家为蓝本,并对其在三者关系配置方面的共同特点与相似之处进行了归纳总结。第五章在充分借鉴两大法系司法职能配置的经验做法的基础上,从实现刑事法治视野的基本要求出发,对现行公检法分工配合制约原则指导下的相互关系提出了构建方案。着重提出了重构警察权、建立检察机关对侦查权的主导指挥机制、改革检察机关的审判监督职能、设立庭前预审机构、强化庭审中心主义、确立非法证据排除规则、确立沉默权制度、强化律师辩护权等一系列改革的具体设想。最后得出结论,在刑事法治视野中,公、检、法之间的职能配置与相互关系应当是——在摒弃“侦查中心主义”的不良倾向的基础上,将公安机关的刑事侦查职能分离出来,由专门的司法警察局行使,检察机关对侦查活动起主导、指挥作用,在审前程序中设立中立的预审机构,负责对侦查追诉活动进行必要的司法审查,确立裁判阶段为整个刑事诉讼活动的中心阶段,确保控、辩双方能够平等对抗,法院中立、公正地行使司法裁判权。
[Abstract]:China's criminal procedure is established in the public, procuratorial, and legal organs "division of responsibility, mutual cooperation." On the basis of the constitutional criminal procedure principle of "mutual restriction" (short for division of labor and restriction), this principle is examined in the view of criminal rule of law and is linked to criminal judicial practice. It is found that this principle is contrary to the law of function allocation of criminal procedure, which leads to the investigation stage becoming the central stage of the whole criminal procedure, which leads to a series of contradictions and problems in practice. The first chapter of this paper reviews the evolution of the judicial system from ancient to modern from the historical point of view. This paper analyzes the traditional judicial thought of our country. The system and thought in history will be retained in people's thought as a kind of national cultural tradition, but the legal concept of our modern people is often a complex synthesis. This is more related to the history of our country in the past 100 years. It is precisely because of the complex social and historical background and one-sided understanding of the purpose of criminal proceedings that leads to the investigation in the criminal procedure system of our country. The relationship between procuratorial organs and judicial organs is restricted by division of work and cooperation, which not only reflects power restriction, but also plays an important role in effectively cracking down on crime. The second chapter aims at the problems in the practice of the relationship between the three organs of the current public procuratorate law, carries on the overall evaluation and the legal theory analysis, and points out that there are structural defects in this kind of litigation structure of the three working procedures. It leads to serious functional imbalance and logic confusion in the allocation of the relationship between the three organs. In practice, it leads to too much emphasis on cooperation, insufficient mutual restriction and inadequate protection of human rights. The third chapter from the internal requirements of the principle of division of labor to cooperate with the constraints of the principle of a comprehensive review of this principle. Combined with the current practice of criminal proceedings, mainly on the relationship between the constraints between police prosecutors. The relationship of cooperation and restriction between the procuratorial law and the lack of the orientation of the relationship between the police and the law are analyzed and reflected in detail, and the negative effects of the relationship between the police and the law are pointed out. Chapter 4th gives a brief introduction and analysis of the relationship between the investigation, control and adjudication organs in the judicial systems of the two major legal systems, mainly based on the typical countries such as Germany, Japan, Britain and the United States. The common characteristics and similarities of the three relations are summarized and summarized. Chapter 5th, on the basis of drawing lessons from the experience and practice of judicial function allocation in two legal systems, sets out from the basic requirements of realizing the vision of criminal rule of law. Under the guidance of the principle of coordination and restriction of the division of labor and restriction of the current public procuratorial law, this paper puts forward the construction scheme, especially puts forward the reconstruction of the police power and the establishment of the leading command mechanism of the procuratorial organ to the investigation power. Reform the procuratorial organs' function of trial supervision, set up pre-trial organs before court, strengthen the doctrine of court center, establish the rule of exclusion of illegal evidence, and establish the system of right to silence. Strengthen lawyer's right to defense and other specific ideas of a series of reforms. Finally, the conclusion is drawn that in the view of criminal rule of law, the function allocation and mutual relationship between public, procurator and law should be based on abandoning the unhealthy tendency of "investigation-centrism". The criminal investigation functions of the public security organs are separated out and exercised by the specialized judicial police stations. The procuratorial organs play a leading and command role in the investigation activities and set up a neutral pre-trial organization in the pretrial procedure. To be responsible for the necessary judicial review of the investigation and prosecution, to establish the adjudication stage as the central stage of the whole criminal proceedings, to ensure that both sides can face each other equally, the court is neutral, and the judicial jurisdiction is exercised impartially.
【学位授予单位】：中国政法大学
【学位级别】：硕士
【学位授予年份】：2010
【分类号】：D925.2

【引证文献】