审判中心主义改革视野下的直接言词审理原则问题研究
发布时间：2018-10-05 07:57
【摘要】：2014年10月召开的中国共产党第十八届中央委员会第四次全体会议通过了《中共中央关于全面推进依法治国若干重大问题的决定》(以下简称为《决定》)确立了“推进以审判为中心的诉讼制度改革”的司法体制改革方针,从而为新形势新常态下进一步推动刑事诉讼审判方式与整体制度构造的改革完善奠定了强有力的基调。以审判为中心是对于审判中心主义这一现代法治表征的刑事诉讼总体构造的近似中国化表述,与传统的、以侦查为中心、流水作业式的诉讼基础构造有着本质的区别。长期以来,刑诉法理论界与一些实务工作界的有识之士一直在呼吁在我国探索建立以审判为中心的新诉讼构造与制度机制。如今,《决定》业已吹响改革的号角,且近期有关国家机关也出台了相应的具体改革指导意见。但是从以侦查为中心向以审判为中心的转变,不是一朝一夕可以完成的,它涉及到制度理念与规范条文上的重新建构、修改,完善,故以何作为主线和切入点切实着手推动乃至最终完成这一艰巨的改革过程,就成为本文所要阐述与解释的课题。直接言词审理原则作为审判中心主义的一大重要组成部分,其功能与作用直接体现在促进庭审的实质化这一以审判为中心改革所要着重实现的目的上。故本文以“审判中心主义改革视野下的直接言词审理原则问题研究”为题,就是以此逻辑脉络探讨论述如何才能真正的实现以审判为中心的诉讼格局,以及如何将“制度上的法”切实有效的落实成为“实践中的法”这一司法体制改革进程中历久弥新的问题。本论文遵循:根据选题背景引出问题,到分析问题相关的理论概念(包括实证分析等)再到提出解决问题的方案设想,这样一条脉络与研究路径,层层深入地论证、解答了什么是以审判为中心的改革,如何切实有效的实现以审判为中心改革目的两大核心问题。本文第五章节提出了一套具体的、可操作性强的改革实施方案:包括改革完善审前程序、适度阻断侦审联结的涉及刑事诉讼各阶段办案机关工作关系的调整、审判组织及法官承办案件工作制度的改进、使法庭审判持续集中进行的改革措施、进一步完善充实证人出庭作证制度与配套措施、进一步切实保障诉讼代理人、辩护律师的程序参与权利,以及健全新型审判权运行机制、保障权责一致、权责统一等其他有利于庭审实质化的配套措施,其中又可细分为若干具有较强可参照性的制度规范条款设计方案。然而,以审判为中心的诉讼制度改革毕竟是诸要素合成的系统论工程,将其彻底地贯彻落实仍然任重道远。
[Abstract]:The fourth plenary session of the 18th Central Committee of the Communist Party of China, held in October 2014, adopted the "decision of the CPC Central Committee on promoting the Rule of Law in an All-round way" (hereinafter referred to as the "decision"). The reform of the judicial system through the reform of the judicial system with the trial as the center, Thus, it lays a strong tone for further promoting the reform and perfection of the criminal procedure trial mode and the whole system structure under the new situation and the new normal. Taking the trial as the center is the approximate Chinese expression of the overall structure of the criminal procedure characterized by the modern rule of law, which is essentially different from the traditional, investigation-centered, flow-through basic structure of the lawsuit. For a long time, the theorists of criminal procedure law and some people of insight in the field of practical work have been calling for the establishment of a new litigation structure and system centered on trial in our country. Today, the decision has sounded the trumpet of reform, and the relevant state organs have recently issued the corresponding specific reform guidance. But the transformation from investigation as the center to trial as the center cannot be completed overnight. It involves the re-construction, modification and perfection of the system concept and the provisions of the norms. Therefore, what is the main line and the starting point to promote and even finish this arduous reform process has become the topic to be expounded and explained in this paper. As an important part of adjudicationism, the principle of direct speech trial is directly embodied in the purpose of promoting the materialization of trial, which should be emphasized in the reform of trial as the center. Therefore, this article is entitled "the study of the principle of direct speech trial under the perspective of judicial centralism reform", which is a logical discussion on how to truly realize the trial centered litigation pattern. And how to effectively implement the "law on the system" into "the law in practice", which is an old and new problem in the process of judicial system reform. This paper follows: according to the background of the topic to lead the problem, to analyze the theoretical concepts related to the problem (including empirical analysis, etc.) to propose a solution to the problem, such a context and research path, layers of in-depth argumentation, The author answers two core questions: what is the reform centered on trial, and how to realize the aim of reform with trial as the center in a practical and effective way. The fifth chapter of this paper puts forward a set of concrete and operable reform implementation plan: including reforming and perfecting the pretrial procedure, appropriately blocking the connection of investigation and trial, involving the adjustment of the working relationship of the organs handling cases in various stages of criminal proceedings. The improvement of the system of handling cases by trial organizations and judges has made it possible for the courts to continuously and centrally carry out reform measures, further improve and enrich the system of witnesses appearing in court and supporting measures, and further effectively safeguard the agents ad litem. The procedural participation rights of defense lawyers, and other supporting measures conducive to the materialization of trials, such as improving the operation mechanism of a new type of judicial power, ensuring consistency of powers and responsibilities, and unification of powers and responsibilities, It can also be subdivided into a number of strong referential provisions of the design of institutional norms. However, the trial-centered litigation system reform is after all a system theory project of the composition of various elements, and it still has a long way to go to carry it out thoroughly.
【学位授予单位】：浙江理工大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D925.2
本文编号：2252602
[Abstract]:The fourth plenary session of the 18th Central Committee of the Communist Party of China, held in October 2014, adopted the "decision of the CPC Central Committee on promoting the Rule of Law in an All-round way" (hereinafter referred to as the "decision"). The reform of the judicial system through the reform of the judicial system with the trial as the center, Thus, it lays a strong tone for further promoting the reform and perfection of the criminal procedure trial mode and the whole system structure under the new situation and the new normal. Taking the trial as the center is the approximate Chinese expression of the overall structure of the criminal procedure characterized by the modern rule of law, which is essentially different from the traditional, investigation-centered, flow-through basic structure of the lawsuit. For a long time, the theorists of criminal procedure law and some people of insight in the field of practical work have been calling for the establishment of a new litigation structure and system centered on trial in our country. Today, the decision has sounded the trumpet of reform, and the relevant state organs have recently issued the corresponding specific reform guidance. But the transformation from investigation as the center to trial as the center cannot be completed overnight. It involves the re-construction, modification and perfection of the system concept and the provisions of the norms. Therefore, what is the main line and the starting point to promote and even finish this arduous reform process has become the topic to be expounded and explained in this paper. As an important part of adjudicationism, the principle of direct speech trial is directly embodied in the purpose of promoting the materialization of trial, which should be emphasized in the reform of trial as the center. Therefore, this article is entitled "the study of the principle of direct speech trial under the perspective of judicial centralism reform", which is a logical discussion on how to truly realize the trial centered litigation pattern. And how to effectively implement the "law on the system" into "the law in practice", which is an old and new problem in the process of judicial system reform. This paper follows: according to the background of the topic to lead the problem, to analyze the theoretical concepts related to the problem (including empirical analysis, etc.) to propose a solution to the problem, such a context and research path, layers of in-depth argumentation, The author answers two core questions: what is the reform centered on trial, and how to realize the aim of reform with trial as the center in a practical and effective way. The fifth chapter of this paper puts forward a set of concrete and operable reform implementation plan: including reforming and perfecting the pretrial procedure, appropriately blocking the connection of investigation and trial, involving the adjustment of the working relationship of the organs handling cases in various stages of criminal proceedings. The improvement of the system of handling cases by trial organizations and judges has made it possible for the courts to continuously and centrally carry out reform measures, further improve and enrich the system of witnesses appearing in court and supporting measures, and further effectively safeguard the agents ad litem. The procedural participation rights of defense lawyers, and other supporting measures conducive to the materialization of trials, such as improving the operation mechanism of a new type of judicial power, ensuring consistency of powers and responsibilities, and unification of powers and responsibilities, It can also be subdivided into a number of strong referential provisions of the design of institutional norms. However, the trial-centered litigation system reform is after all a system theory project of the composition of various elements, and it still has a long way to go to carry it out thoroughly.
【学位授予单位】：浙江理工大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D925.2
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