刑事法治中的亲属拒证权研究

发布时间：2018-11-07 19:34

【摘要】：亲属拒证权作为现代法治国家赋予亲属证人就特定情况下免于作证的一项权利,是证人作证义务的例外,在世界上许多国家都有明确规定,我国历史虽然没有亲属拒证权的直接规定,但是封建宗法制度下的“亲亲得相首匿”却也一定程度上体现了亲属拒证的理念。我国目前的刑事立法中却缺失了这一重要证人权利,这主要是由于建国以来我们一直视亲属拒证权为封建糟粕,并在一定程度上与马克思主义的实事求是原则相背离。本文拟通过对亲属拒证权概念的认识,分析现行立法与亲属拒证权相冲突的地方,从亲属证罪体现的国家与家庭,法律与道德的矛盾进而对现行立法进行道德批判。在深入剖析亲属拒证权所蕴含的伦理价值、法理价值、法经济学价值、法社会学价值、人权保障价值,心理学价值的基础上,本文拟探索亲属拒证权得以在中国确立的合理因素,希望在借鉴西方国家经验和我国港澳台地区实践的基础上,在传统文化的土壤里培育我国的亲属拒证权,并提出具体的制度构建。
[Abstract]:The right of refusal to testify by relatives, as a right granted to witnesses by modern rule of law, is an exception to the obligation of witnesses to testify, which is clearly stipulated in many countries in the world. Although there is no direct stipulation of the right of relatives to refuse the certificate in our country's history, the concept of refusing the certificate by relatives is reflected to a certain extent in the feudal patriarchal system. This important witness right is absent in our country's current criminal legislation, which is mainly due to the fact that since the founding of the people's Republic of China, we have always regarded the right of refusal to testify by relatives as a feudal dregs, and to some extent deviated from the principle of seeking truth from facts of Marxism. Through the understanding of the concept of relatives' right to refuse to testify, this paper analyzes the conflict between the current legislation and the right of relatives' refusal to testify, and criticizes the current legislation from the contradiction between country and family, law and morality embodied in the crime of kinship's proof. On the basis of deeply analyzing the ethical value, the value of law and economics, the value of sociology of law, the value of human rights protection and the value of psychology, the right of relatives to refuse proof is deeply analyzed. This paper intends to explore the reasonable factors for the establishment of the right of relatives to refuse certificates in China, hoping to cultivate the right of refusal of relatives of our country in the soil of traditional culture on the basis of the experience of western countries and the practice of Hong Kong, Macao and Taiwan in our country. And put forward the concrete system construction.
【学位授予单位】：浙江工业大学
【学位级别】：硕士
【学位授予年份】：2010
【分类号】：D925.2

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