我國親屬拒證權(quán)制度研究
發(fā)布時間：2018-11-29 14:13
【摘要】：當下,世界上許多現(xiàn)代法治國家在刑事立法中普遍采用親屬拒證權(quán)制度,這已經(jīng)成為當今世界刑事立法的一種潮流。然而,根據(jù)我國現(xiàn)行法的規(guī)定,不管證人是否與犯罪嫌疑人、被告人具有親屬關(guān)系,凡是知道案件情況的,都有作證的義務(wù)。如果親屬證人拒絕作證,其必須承擔相應(yīng)的法律后果。雖然新修訂的《刑事訴訟法》第一百八十八條規(guī)定了被告人的配偶、父母、子女可以不出庭作證,但法律僅是免除了近親屬證人出庭作證的義務(wù),而非真正意義上的親屬拒證權(quán)制度。 鑒于我國刑事立法中親屬拒證權(quán)制度的缺失,本文首先從法理基礎(chǔ)和訴訟價值兩個層面闡述建立親屬拒證權(quán)制度的合理性和必要性：在法理依據(jù)方面,親屬拒證權(quán)制度契合了期待可能性、親屬法倫理價值以及契約和信賴理論；在訴訟價值方面,親屬拒證權(quán)制度不僅尊重和保障了親屬證人、犯罪嫌疑人、被告人的人權(quán),體現(xiàn)了立法對個體權(quán)利的高度尊重,而且還避免了訴訟資源的浪費,提高了刑事訴訟效率,更達到了實現(xiàn)程序公正的目的。 其次,本文著重探究中國現(xiàn)今刑事立法中親屬拒證權(quán)制度缺失的現(xiàn)狀、缺失的原因以及立法缺失所帶來的弊端。在我國大陸不論是實體法還是程序法,均未對親屬拒證特權(quán)作出任何實質(zhì)性的規(guī)定。親屬拒證權(quán)制度的缺失不僅源于我國建國后的具體國情,也深受前蘇聯(lián)刑事立法的影響。立法上的缺失不僅侵害了證人、犯罪嫌疑人、被告人的個體權(quán)利,而且也直接損害了司法的權(quán)威性,不利于和諧社會的構(gòu)建。 最后,本文重點闡述我國親屬拒證權(quán)制度的具體設(shè)計,分別從主體范圍、程序操作、例外情形以及保障措施四個方面對完善我國親屬拒證權(quán)制度提出建議。親屬拒證權(quán)制度適用的主體范圍一般情況下為犯罪嫌疑人、被告人的近親屬人員,但考慮到實踐中我國目前家庭構(gòu)成模式的現(xiàn)狀,特殊情況下,立法可將親屬拒證權(quán)的適用主體放寬到與犯罪嫌疑人、被告人有三代以內(nèi)血親關(guān)系或姻親關(guān)系的人員；程序操作方面,立法應(yīng)細化告知程序、申請和放棄程序以及審核程序,確保權(quán)利主體能夠在實踐中無障礙地行使自己的合法權(quán)利；同時,為避免個人權(quán)利的行使嚴重破壞國家法律的權(quán)威和人倫親情,立法必須給親屬拒證權(quán)制度的適用設(shè)立一定的例外條件,具體為：親屬拒證權(quán)不適用于危害國家安全的犯罪、恐怖活動犯罪、黑社會性質(zhì)的組織犯罪、不適用于被告人與其親屬間的共同犯罪以及不適用于針對家庭成員之間的犯罪；最后,為了保障親屬拒證權(quán)制度的順利實施,立法應(yīng)規(guī)定司法機關(guān)強制親屬作證應(yīng)承擔相應(yīng)的法律后果,設(shè)立專門的親屬證人保護機構(gòu)。
[Abstract]:At present, many modern countries under the rule of law in the world generally adopt the system of the right of relatives refusing to testify in criminal legislation, which has become a trend of criminal legislation in the world today. However, according to the current law of our country, no matter whether the witness is related to the suspect or not, the defendant has the obligation to testify. If a relative witness refuses to testify, it must bear the corresponding legal consequences. Although article 188 of the newly amended Code of Criminal procedure provides that the spouses, parents and children of the accused may not testify in court, the law merely exonerates witnesses of close relatives from the obligation to testify in court. Rather than the real sense of the right of relatives to refuse to testify system. In view of the absence of the system of the right of relatives refusing to testify in our criminal legislation, this paper first expounds the rationality and necessity of establishing the system of the right of refusal of proof of relatives from two aspects of the legal basis and the value of litigation: in the aspect of legal basis, The system of relatives' right to refuse proof fits the possibility of expectation, the ethical value of kinship law, and the theory of contract and trust; In the aspect of lawsuit value, the system not only respects and protects the human rights of the witnesses, suspects and defendants, but also avoids the waste of litigation resources. Improve the efficiency of criminal proceedings, but also achieve the goal of procedural justice. Secondly, this paper focuses on the current situation of the absence of the right of relatives refusing to testify in the present criminal legislation in China, the reasons for the absence and the drawbacks brought by the lack of legislation. In mainland China, neither substantive law nor procedural law makes any substantive provisions on the privilege of refusal of proof by relatives. The absence of the system of the right to refuse proof of relatives is not only due to the specific national conditions after the founding of the people's Republic of China, but also deeply influenced by the criminal legislation of the former Soviet Union. The lack of legislation not only infringes the individual rights of witnesses, criminal suspects and defendants, but also directly damages the authority of the judiciary and is not conducive to the construction of a harmonious society. Finally, this paper focuses on the specific design of the system of the right of refusal of proof of relatives in China, respectively from the main scope, procedural operations, exceptions and safeguards to improve the system of the right of refusal of proof of relatives in China. The subject scope of the application of the system of the right of relatives refusing to testify is generally the criminal suspect, the close relative of the defendant, but considering the present situation of the family constitution mode in our country in practice, under special circumstances, Legislation can relax the right of relatives to refuse to apply to criminal suspects, the defendant has three generations of kinship or affinity; In the aspect of procedure operation, the legislation should detail the procedure of informing, application and waiver, as well as the procedure of auditing, so as to ensure that the subject of right can exercise his legal right without hindrance in practice; At the same time, in order to prevent the exercise of individual rights from seriously undermining the authority of the state law and the relationship between the people, the legislation must establish certain exceptional conditions for the application of the system of relatives' refusal to testify. The main contents are as follows: the right of refusal of proof does not apply to crimes endangering national security, crimes of terrorist activities, organized crimes of underworld nature, joint crimes between defendants and their relatives, and crimes against family members; Finally, in order to ensure the smooth implementation of the system of relatives' right to refuse to testify, the legislation should stipulate that the judicial organs should bear the corresponding legal consequences and establish a special institution for the protection of relatives' witnesses.
【學(xué)位授予單位】：安徽大學(xué)
【學(xué)位級別】：碩士
【學(xué)位授予年份】：2014
【分類號】：D925.2
本文編號：2365208
[Abstract]:At present, many modern countries under the rule of law in the world generally adopt the system of the right of relatives refusing to testify in criminal legislation, which has become a trend of criminal legislation in the world today. However, according to the current law of our country, no matter whether the witness is related to the suspect or not, the defendant has the obligation to testify. If a relative witness refuses to testify, it must bear the corresponding legal consequences. Although article 188 of the newly amended Code of Criminal procedure provides that the spouses, parents and children of the accused may not testify in court, the law merely exonerates witnesses of close relatives from the obligation to testify in court. Rather than the real sense of the right of relatives to refuse to testify system. In view of the absence of the system of the right of relatives refusing to testify in our criminal legislation, this paper first expounds the rationality and necessity of establishing the system of the right of refusal of proof of relatives from two aspects of the legal basis and the value of litigation: in the aspect of legal basis, The system of relatives' right to refuse proof fits the possibility of expectation, the ethical value of kinship law, and the theory of contract and trust; In the aspect of lawsuit value, the system not only respects and protects the human rights of the witnesses, suspects and defendants, but also avoids the waste of litigation resources. Improve the efficiency of criminal proceedings, but also achieve the goal of procedural justice. Secondly, this paper focuses on the current situation of the absence of the right of relatives refusing to testify in the present criminal legislation in China, the reasons for the absence and the drawbacks brought by the lack of legislation. In mainland China, neither substantive law nor procedural law makes any substantive provisions on the privilege of refusal of proof by relatives. The absence of the system of the right to refuse proof of relatives is not only due to the specific national conditions after the founding of the people's Republic of China, but also deeply influenced by the criminal legislation of the former Soviet Union. The lack of legislation not only infringes the individual rights of witnesses, criminal suspects and defendants, but also directly damages the authority of the judiciary and is not conducive to the construction of a harmonious society. Finally, this paper focuses on the specific design of the system of the right of refusal of proof of relatives in China, respectively from the main scope, procedural operations, exceptions and safeguards to improve the system of the right of refusal of proof of relatives in China. The subject scope of the application of the system of the right of relatives refusing to testify is generally the criminal suspect, the close relative of the defendant, but considering the present situation of the family constitution mode in our country in practice, under special circumstances, Legislation can relax the right of relatives to refuse to apply to criminal suspects, the defendant has three generations of kinship or affinity; In the aspect of procedure operation, the legislation should detail the procedure of informing, application and waiver, as well as the procedure of auditing, so as to ensure that the subject of right can exercise his legal right without hindrance in practice; At the same time, in order to prevent the exercise of individual rights from seriously undermining the authority of the state law and the relationship between the people, the legislation must establish certain exceptional conditions for the application of the system of relatives' refusal to testify. The main contents are as follows: the right of refusal of proof does not apply to crimes endangering national security, crimes of terrorist activities, organized crimes of underworld nature, joint crimes between defendants and their relatives, and crimes against family members; Finally, in order to ensure the smooth implementation of the system of relatives' right to refuse to testify, the legislation should stipulate that the judicial organs should bear the corresponding legal consequences and establish a special institution for the protection of relatives' witnesses.
【學(xué)位授予單位】：安徽大學(xué)
【學(xué)位級別】：碩士
【學(xué)位授予年份】：2014
【分類號】：D925.2
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