近亲属作证特免权的建构

发布时间：2018-05-30 10:52

本文选题：刑事诉讼 + 近亲属作证　；参考：《郑州大学》2013年硕士论文

【摘要】：刑事诉讼近亲属作证特免权作为刑事诉讼追究犯罪与其它重要的社会价值相权衡的结果,是现代法治国家赋予近亲属证人就特定情况下免予作证的一项重要权利。作为证人作证义务的例外,赋予近亲属作证特免权符合人性的基本需要,符合社会的基本伦理道德观念。刑事诉讼中近亲属作证特免权制度在古今中外都有着漫长的发展历程。在我国古代,封建宗法制度下的“亲亲相隐制度”在一定程度上体现了近亲属作证特免权的刑事司法理念。同时,在英美法系与大陆法系许多国家和地区的法律也都不同程度的规定了有关亲属作证特免权的相关内容。然而,建国之后,由于历史原因、社会政治环境及立法技术等因素的制约,将近亲属作证特免权也视为应当革除的封建社会遗留产物,在立法上彻底废除了该项制度。随着改革开放的推进和社会经济的发展,法治越来越受到重视,法学研究也取得飞速的发展。在经过长时间的实践考察与研究后,发现近亲属作证特免权并不必然与现代法治与民主精神相违背。相反其不但符合基本的家庭论文道德观念,而且符合现代社会人权保障理念,提高人权保障水平。因此,在我国面临社会转型,传统的亲情和家庭伦理观念受到冲击的当下,构建刑事诉讼近亲属作证特免权制度有重要的现实意义。本文首先对刑事诉讼近亲属作证特免权制度概念进行阐述,将其与证人资格作证豁免权等相关概念进行对比分析,理清了近亲属作证特免权的含义。并指出了近亲属作证特免权制度存在的理论基础。其次,在对英美法系国家、大陆法系国家以及我国港澳台地区有关刑事诉讼近亲属作证特免权问题的立法与司法实践进行考察、分析,希冀找到构建我国刑事诉讼近亲属作证特免权制度的借鉴之处。再次,从我国传统法律文化中的亲亲相隐制度入手,对古代亲亲相隐制度的起源与发展及其与现代刑事诉讼近亲属作证特免权制度之区别等方面来论述,指出“亲亲相隐”对建构近亲属作证特免权的启示。最后,在对域外相关制度的考察和我国古代相关规定分析的基础上,提出我国刑事诉讼近亲属作证特免权制度的具体构建措施。指出在构建过程中应当坚持利益权衡原则、不得侵害他人利益原则、罪责刑相适应原则。在具体制度的构建时应当明确近亲属作证特免权是一项程序性权利,其适用的主体也应当有所限制并且需要经过申请、审核等相关程序,设置相关的救济措施。此外,作为证人作证义务的例外,该制度的适用也有例外的情形。
[Abstract]:As the result of the balance between the criminal prosecution and other important social values, the privilege of immunity of near relatives testifying in criminal proceedings is an important right granted by the modern rule of law country to the near relatives witnesses to be exempted from testifying under certain circumstances. As an exception to witness's duty to testify, it accords with the basic needs of human nature and the basic ethical and moral concept of society to grant the right of immunity to near relatives to testify. The special exemption system of near relatives testifying in criminal proceedings has a long process of development at all times and all over the world. In ancient China, the system of "close relatives hiding" under the feudal patriarchal system reflected to a certain extent the criminal judicial idea of the special exemption right of near relatives to testify. At the same time, in many countries and regions of Anglo-American law system and civil law system, the relevant contents of the privilege of relatives testifying are stipulated to some extent. However, after the founding of the people's Republic of China, due to historical reasons, social and political environment, legislative technology and other factors, the right of near relatives to testify and exempt was regarded as a legacy of feudal society that should be removed, and the system was completely abolished in legislation. With the promotion of reform and opening up and the development of social economy, more and more attention has been paid to the rule of law, and legal research has also made rapid development. After a long period of practical investigation and research, it is found that the privilege of near relatives testifying is not necessarily against the modern rule of law and the spirit of democracy. On the contrary, it not only accords with the basic family moral concept, but also accords with the modern social human rights guarantee concept and improves the level of human rights protection. Therefore, in the face of social transformation and the impact of traditional family ethics, it is of great practical significance to construct the special exemption system of the right of close relatives to testify in criminal proceedings. This paper first expounds the concept of privilege system of near relatives testifying in criminal proceedings, compares it with related concepts such as immunity of witness qualification and testifying, and clarifies the meaning of privilege of near relatives to testify. It also points out the theoretical basis of the special exemption system of near relatives testifying. Secondly, in the Anglo-American law countries, the civil law countries as well as our country Hong Kong, Macao and Taiwan area about the criminal procedure near relative testifying special exemption question legislation and the judicial practice, carries on the investigation, the analysis, The author hopes to find the reference for constructing the special exemption system of near relatives testifying in criminal procedure in our country. Thirdly, from the traditional legal culture of our country, the author discusses the origin and development of the ancient system of closeness between relatives and relatives, and the difference between the system of special exemption from the right to testify by close relatives in modern criminal proceedings, and so on. The author points out the enlightenment of "close relatives' concealment" to the construction of the special immunity right of close relatives to testify. Finally, on the basis of the investigation of the extraterritorial related system and the analysis of the relevant regulations in ancient China, the author puts forward the concrete construction measures of the special exemption system of the right of near relatives to testify in our criminal procedure. It is pointed out that the principle of balancing interests should be adhered to, the principle of interests of others should not be infringed, and the principle of adaptation of crime, responsibility and punishment should be adhered to. In the construction of the specific system, it should be clear that the right of special exemption of near relatives to testify is a procedural right, and its applicable subject should also be limited and need to apply, review and other relevant procedures, set up relevant relief measures. In addition, as an exception to witness's duty to testify, there are exceptions to the application of this system.
【学位授予单位】：郑州大学
【学位级别】：硕士
【学位授予年份】：2013
【分类号】：D925.2

【参考文献】