論美國刑事訴訟的憲法性質及其借鑒
發(fā)布時間：2018-09-19 18:45
【摘要】：刑事訴訟法是規(guī)定國家如何行使刑罰權的法律部門,在追訴犯罪的過程中,國家權力可能會直接延伸到個人的自由權利空間,此時,國家權力與個人權利就不可避免地發(fā)生直接碰撞。因此在所有的訴訟程序中,刑事訴訟中權力權利之間的對抗最為激烈,刑事程序運行的結果更是關系到自由甚至生命;同時刑事程序又非常特殊,一方面它作為保障社會秩序的終極手段,另一方面它又是個人捍衛(wèi)自身完整、獨立于社會存在的最后機會。而憲法的中心任務就是保護權利和限制權力,由于在保護人權方面,刑事訴訟法與憲法有著相同的立法目的,因此二者有著天然的聯(lián)系。美國刑事司法制度的最大特點,就是將一些直接涉及公民人權和自由的訴訟行為上升到憲法高度,為公民在刑事訴訟中的權利提供憲法性保障。美國擁有十分龐大而復雜的、與來源于憲法性解釋的刑事司法相關的法律匯編。因此,有必要對于美國刑事訴訟的憲法性質加以全面而詳細的論述,這對于我國一些基本的刑事訴訟基本原則入憲也有一定的借鑒意義。 美國刑事訴訟憲法性質的形成有其獨特的歷史背景和發(fā)展條件,殖民地時期美國人民深受英國自然法的影響,相信“天賦人權”,獨立革命后,美國的先驅者按照孟德斯鳩社會契約論的觀點建立新政府,實行分權的政治體制統(tǒng)治,英國的法律至上觀念在美國表現(xiàn)為憲法至上,憲法在美國是“高級法”。聯(lián)邦憲法在其文本中重點和詳盡地規(guī)定刑事訴訟制度,使得其刑事訴訟法具有了至高無上的法律淵源。分權的政治體制、判例法的傳統(tǒng)以及完善的憲法救濟制度都為美國刑事訴訟憲法性質的發(fā)展鞏固起到了一定的作用。美國刑事訴訟憲法性質主要表現(xiàn)在兩個方面,一是在憲法文本中諸多刑事訴訟基本權利的規(guī)定,比如《權利法案》中有多達十二項關于刑事訴訟基本權利的規(guī)定;二是刑事正當程序的規(guī)定,聯(lián)邦憲法第五修正案和第十四修正案都規(guī)定了正當程序,兩個條款有其內在的區(qū)別與聯(lián)系。其他有關刑事訴訟的規(guī)定也被包含在聯(lián)邦憲法之中,比如法院體系,管轄制度等,此外,日益受重視的被害人權利入憲也只是個時間問題,同時,美國刑事訴訟法在憲法領域內也面臨著很多新的問題,如有關規(guī)則面臨的新挑戰(zhàn),高科技手段的影響,民族種族問題等。 隨著各國紛紛加入《世界人權宣言》、《公民權利和政治權利國際公約》等國際性公約,刑事訴訟憲法化已經成為一種國際趨勢。相比之下,我國有不小的差距,很多屬于基本人權范疇的刑事訴訟權利以及正當程序的規(guī)定在憲法中并未得到體現(xiàn),刑事訴訟權利和刑事正當程序缺少憲法淵源,很容易遭到侵犯,我國國情不同于美國,比如在政治體制、法律傳統(tǒng)和憲法救濟方面就有很大的不同,因此,參照美國經驗的同時,應該根據(jù)我國國情,探尋適合我國的刑事訴訟憲法化道路。
[Abstract]:The Code of Criminal procedure is a legal department that specifies how the state exercises the right to penalty. In the process of prosecuting a crime, the power of the state may extend directly to the space of the individual's free right. At this time, State power and individual rights inevitably collide directly. Therefore, in all the proceedings, the confrontation between the rights of power in the criminal proceedings is the most fierce, the result of the operation of the criminal procedure is even more related to freedom and even life; at the same time, the criminal procedure is very special. On the one hand, it is the ultimate means to safeguard social order, on the other hand, it is the last opportunity for individuals to defend their own integrity and independence from social existence. The central task of the constitution is to protect and restrict the power. Because the criminal procedure law and the constitution have the same legislative purpose in the protection of human rights, the two have a natural connection. The greatest characteristic of the American criminal justice system is to raise some litigation acts directly related to the human rights and freedoms of citizens to the height of the Constitution and to provide constitutional protection for the rights of citizens in criminal proceedings. The United States has a very large and complex collection of criminal justice related to constitutional interpretation. Therefore, it is necessary to make a comprehensive and detailed discussion on the constitutional nature of American criminal procedure, which has some reference significance for some basic principles of criminal procedure in our country. The formation of the constitutional nature of American criminal procedure has its unique historical background and development conditions. During the colonial period, the American people were deeply influenced by British natural law and believed that "natural human rights", after the independent revolution, According to Montesquieu's view of social contract, American pioneers established a new government and exercised a decentralized political system. In the United States, the supremacy of the British law was manifested as the supremacy of the constitution, which was the "higher law" in the United States. The federal constitution lays down the criminal procedure system in detail in its text, which makes the criminal procedure law have supreme legal origin. The political system of separation of powers, the tradition of case law and the perfect system of constitutional remedy have played a certain role in the development and consolidation of the constitutional nature of American criminal procedure. The constitutional nature of American criminal procedure is mainly manifested in two aspects. One is that there are as many provisions on the basic rights of criminal procedure in the text of the Constitution, for example, there are as many as 12 provisions on the basic rights of criminal procedure in the Bill of Rights; Second, the provisions of criminal due process, the Fifth Amendment and the Fourteenth Amendment of the Federal Constitution provide for due process, the two provisions have their inherent differences and links. Other provisions on criminal proceedings are also included in the federal constitution, such as the court system, the jurisdiction system, and so on. In addition, it is only a matter of time before the increasingly valued rights of victims are included in the Constitution. The United States Criminal procedure Law also faces many new problems in the constitutional field, such as the new challenges to the relevant rules, the influence of high-tech means, the issue of ethnic groups, and so on. With the accession of countries to the Universal Declaration of Human Rights and the International Covenant on Civil and political Rights, constitutionalization of criminal proceedings has become an international trend. In contrast, there is not a small gap in our country. Many of the criminal procedural rights and due process provisions belonging to the basic human rights category have not been reflected in the Constitution, and the criminal procedural rights and due process lack the constitutional origin. Our national conditions are very different from those of the United States. For example, there are very different political systems, legal traditions and constitutional remedies. Therefore, when referring to the experience of the United States, we should, at the same time, take the situation of our country into account. To explore the constitutional road of criminal procedure suitable for our country.
【學位授予單位】：鄭州大學
【學位級別】：碩士
【學位授予年份】：2009
【分類號】：D971.2;DD915.3;DD911
本文編號：2250996
[Abstract]:The Code of Criminal procedure is a legal department that specifies how the state exercises the right to penalty. In the process of prosecuting a crime, the power of the state may extend directly to the space of the individual's free right. At this time, State power and individual rights inevitably collide directly. Therefore, in all the proceedings, the confrontation between the rights of power in the criminal proceedings is the most fierce, the result of the operation of the criminal procedure is even more related to freedom and even life; at the same time, the criminal procedure is very special. On the one hand, it is the ultimate means to safeguard social order, on the other hand, it is the last opportunity for individuals to defend their own integrity and independence from social existence. The central task of the constitution is to protect and restrict the power. Because the criminal procedure law and the constitution have the same legislative purpose in the protection of human rights, the two have a natural connection. The greatest characteristic of the American criminal justice system is to raise some litigation acts directly related to the human rights and freedoms of citizens to the height of the Constitution and to provide constitutional protection for the rights of citizens in criminal proceedings. The United States has a very large and complex collection of criminal justice related to constitutional interpretation. Therefore, it is necessary to make a comprehensive and detailed discussion on the constitutional nature of American criminal procedure, which has some reference significance for some basic principles of criminal procedure in our country. The formation of the constitutional nature of American criminal procedure has its unique historical background and development conditions. During the colonial period, the American people were deeply influenced by British natural law and believed that "natural human rights", after the independent revolution, According to Montesquieu's view of social contract, American pioneers established a new government and exercised a decentralized political system. In the United States, the supremacy of the British law was manifested as the supremacy of the constitution, which was the "higher law" in the United States. The federal constitution lays down the criminal procedure system in detail in its text, which makes the criminal procedure law have supreme legal origin. The political system of separation of powers, the tradition of case law and the perfect system of constitutional remedy have played a certain role in the development and consolidation of the constitutional nature of American criminal procedure. The constitutional nature of American criminal procedure is mainly manifested in two aspects. One is that there are as many provisions on the basic rights of criminal procedure in the text of the Constitution, for example, there are as many as 12 provisions on the basic rights of criminal procedure in the Bill of Rights; Second, the provisions of criminal due process, the Fifth Amendment and the Fourteenth Amendment of the Federal Constitution provide for due process, the two provisions have their inherent differences and links. Other provisions on criminal proceedings are also included in the federal constitution, such as the court system, the jurisdiction system, and so on. In addition, it is only a matter of time before the increasingly valued rights of victims are included in the Constitution. The United States Criminal procedure Law also faces many new problems in the constitutional field, such as the new challenges to the relevant rules, the influence of high-tech means, the issue of ethnic groups, and so on. With the accession of countries to the Universal Declaration of Human Rights and the International Covenant on Civil and political Rights, constitutionalization of criminal proceedings has become an international trend. In contrast, there is not a small gap in our country. Many of the criminal procedural rights and due process provisions belonging to the basic human rights category have not been reflected in the Constitution, and the criminal procedural rights and due process lack the constitutional origin. Our national conditions are very different from those of the United States. For example, there are very different political systems, legal traditions and constitutional remedies. Therefore, when referring to the experience of the United States, we should, at the same time, take the situation of our country into account. To explore the constitutional road of criminal procedure suitable for our country.
【學位授予單位】：鄭州大學
【學位級別】：碩士
【學位授予年份】：2009
【分類號】：D971.2;DD915.3;DD911
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