論中國特色近親屬拒證權(quán)制度之構(gòu)建
發(fā)布時間：2019-06-27 09:11
【摘要】：所謂近親屬拒證權(quán),是指基于與犯罪嫌疑人、被告人存在特殊身份關(guān)系的人依法享有拒絕向司法機關(guān)提供證言的一種特殊權(quán)利。兩大法系國家在很早的時候就對此權(quán)利作出了不同程度地規(guī)定。但是,在我國刑事訴訟法的歷史上該制度卻長期缺席。雖然2012年3月14日,“親屬出庭作證義務(wù)豁免權(quán)”成為我國新《刑事訴訟法》的一個亮點,即首次通過訴訟立法的形式在維護親情、尊重和保障人權(quán)方面邁進了難能可貴的一步,無論是對我國全面推進社會主義法治建設(shè),還是適應司法實踐改革的需要都具有極為重要的現(xiàn)實意義。但是,該規(guī)定僅僅提到“親屬出庭作證義務(wù)豁免權(quán)”而已,既沒有明確界定“親屬出庭作證義務(wù)豁免權(quán)”的基本要義,也沒有明確規(guī)定享有此種豁免權(quán)的親屬范圍、行使的條件、行使方式和程序保障等,即我國迄今為止并無完備的近親屬拒證權(quán)制度。我國司法實踐現(xiàn)狀要求我們必須跟上時代發(fā)展的步伐,傳承我國古代已存在的容隱思想和理性借鑒國外先進的立法經(jīng)驗,構(gòu)建中國特色的完備的近親屬拒證權(quán)制度勢在必行�；诖�,本文以“論中國特色近親屬拒證權(quán)制度之構(gòu)建”作為選題,首先,基于近親屬拒證權(quán)制度的基本理論闡釋,介紹了近親屬拒證權(quán)的概念、特征、價值以及在我國構(gòu)建該制度的必要性 .和可行性。其次,深入剖析我國近親屬拒證權(quán)制度殘缺的主要原因和弊端。再次,通過比較研究之方法論述兩大法系在近親屬拒證權(quán)制度方面的基本特點及對我國的啟示意義,最后,闡述構(gòu)建具有中國特色的完備的近親屬拒證權(quán)制度的基本構(gòu)想,企盼能對我國司法制度的改革和推進我國的法治化進程盡綿薄之力。全文主要包括以下四個部分:第一部分,闡釋近親屬拒證權(quán)制度的基本理論。首先,闡述了近親屬拒證權(quán)的基本概念和特征。近親屬拒證權(quán)除具有上述基本內(nèi)涵外,還具有以下特征:它是一種法定的權(quán)利;近親屬具有作證能力;此權(quán)享有者必須與被告人存在親屬關(guān)系;拒證的內(nèi)容有法律條文可供遵循。其次,論述了構(gòu)建該制度的主要價值:有利于體現(xiàn)法律的人性化;有利于體現(xiàn)法律注重人類基本情感;具有對基本人權(quán)的認可和保障價值。最后,論述了構(gòu)建我國完備的近親屬拒證權(quán)制度的必要性和可行性。其必要性主要體現(xiàn)在如下幾個方面:它是權(quán)利義務(wù)均衡的基本要求;它是權(quán)利與權(quán)力對弈的結(jié)果;它符合“法不強人所難”的觀念;它與我國傳統(tǒng)文化和社會基本倫理道德精神相符。構(gòu)建我國完備的近親屬拒證權(quán)制度不僅具有上述必要性,而且是完全可行的。第二部分,深入剖析我國近親屬拒證權(quán)制度殘缺的原因和弊端。我國的近親屬拒證權(quán)制度長期缺位,至今仍然殘缺,其主要原因有:受義務(wù)本位思想居上之影響;受對舊的法律制度的過度批判之影響;受重實體法而輕程序法之影響。其弊端如下:侵犯個人自由,背離人性;阻礙社會和諧發(fā)展;降低證據(jù)質(zhì)量,訴訟活動受阻;不利于樹立法律的權(quán)威。第三部分,比較研究兩大法系關(guān)于近親屬拒證權(quán)制度的立法規(guī)定與實踐。雖然兩大法系對該制度的立法規(guī)定不盡一致,各有特色,但在如下方面對構(gòu)建具有中國特色的完備的近親屬拒證權(quán)制度不乏有重要的啟示意義:必須明確規(guī)定該權(quán)利的行使主體范圍;必須明確規(guī)定該權(quán)利的行使條件和方式;必須設(shè)置保障該權(quán)利得到真正實現(xiàn)的法定程序。第四部分,論述構(gòu)建具有中國特色的完備的近親屬拒證權(quán)制度的設(shè)想。要切實構(gòu)建符合中國特色的完備的近親屬拒證權(quán)制度,以進一步推進我國的司法改革,應當從具體內(nèi)容安排和程序設(shè)置這兩個方面入手。就具體內(nèi)容安排而言:應當明確界定近親屬范圍;應當明確行使此種權(quán)利的范圍;對不適用該權(quán)利的特殊情形作出規(guī)定;將該項權(quán)利行使擴大到整個訴訟階段。就程序設(shè)置而言,應當設(shè)置與該項制度相適應的如下程序:告知程序;申請程序;審核程序;放棄程序。從而使被告人的近親屬行使拒證權(quán)既有具體的法律規(guī)則可依,又有嚴格的程序予以保障。
[Abstract]:The right of the so-called close relatives is a special right to refuse to provide testimony to the judicial organ in accordance with the law on the basis of a person who has a special status relationship with the criminal suspect and the defendant. The two law-based countries have made a different degree of provision on this right in the early stages. However, in the history of our criminal procedure law, the system has been absent for a long time. Although on March 14,2012, the "the immunity of the relatives in court" became one of the highlights of our new Code of Criminal Procedure, that is, the first time that the form of litigation legislation has taken a valuable step in the maintenance of family relations, respect and human rights, whether to promote the construction of the socialist rule of law in a comprehensive way, It is of great practical significance to adapt to the needs of judicial practice reform. However, the provision only refers to the "the immunity of the relatives in court", which neither defines the basic meaning of the "the immunity of the relatives in court", nor specifies the scope of the relative to enjoy such immunity, the conditions of the exercise, the mode of exercise and the procedural guarantee, etc., that is, the system of the right of refusal of the close relatives to date. The present situation of judicial practice in our country requires that we keep up with the pace of the development of the times, to carry on the implicit thought and the rational use of the advanced legislative experience of the foreign countries, and to build a complete system of the right-to-close relatives of the close relatives with Chinese characteristics. On the basis of this, the article takes the "On the Construction of the System of the Protection of the Property of the Near-relatives with Chinese Characteristics;" as the subject, first, based on the basic theory explanation of the system of the close relatives, the concept, characteristic, value and the necessity of constructing the system in our country are introduced. And feasibility. Secondly, the main causes and disadvantages of the incomplete right system of the close relatives of our country are analyzed in depth. Thirdly, through the comparative study, this paper discusses the basic characteristics of the two-law system and the significance of the enlightenment to our country, and finally expounds the basic idea of constructing a complete and close-relative refusal system with Chinese characteristics. We are looking forward to the reform of the judicial system in our country and the development of our country's legal process. The full text mainly includes the following four parts: the first part, the interpretation of the basic theory of the close-relative refusal system. First of all, the basic concept and characteristics of the right of the close relatives' refusal of proof are described. In addition to the above basic connotation, the close relatives' refusal of proof also has the following characteristics: it is a legal right; the close relatives have the ability to testify; the right of the right is to be in the hands of the defendant; the content of the refusal is to be followed. Secondly, the main value of the construction of the system is discussed: it is beneficial to reflect the humanization of the law; it is beneficial to the reflection of the human basic emotion; and it has the recognition and guarantee value of the basic human rights. Finally, this paper discusses the necessity and feasibility of building a complete and close-relative refusal system in China. The necessity is mainly embodied in the following aspects: it is the basic requirement of the balance of rights and obligations; it is the result of the right and power to the law; it is in line with the idea that the law is not strong; it is in line with the traditional Chinese culture and the basic moral and moral spirit of our country. The system not only has the above-mentioned necessity, but also is completely feasible. The second part, in-depth analysis of the causes and disadvantages of the incomplete system of the close relatives of our country. The long-term absence of the right system of the close relatives of our country is still incomplete, and its main reasons are: the influence of the duty-based thought; the influence of the over-criticism of the old legal system; the influence of the light procedural law under the heavy substantive law. The disadvantages are as follows: the violation of the individual's freedom, the departure from the human nature, the development of social harmony, the reduction of the quality of the evidence, the obstruction of the proceedings, and the lack of authority to establish the law. The third part is to compare the legislative provisions and practice of the two legal systems about the system of the close relatives' refusal of proof. Although the two legal systems are not consistent with the legislative provisions of the system, it is of great significance to the establishment of a complete system of close relatives' refusal of proof with Chinese characteristics in the following respects: it is necessary to specify the scope of the exercise of this right; The conditions and means of the exercise of that right must be clearly defined; it is important to set up a legal procedure to guarantee the true realization of that right. The fourth part is to discuss the idea of building a complete system of close relatives' refusal of proof with Chinese characteristics. In order to further promote the judicial reform of our country, we should start with the specific content arrangement and the procedure. In that context of the specific content arrangement, it should be clear that the scope of the near-family should be clearly defined; the scope of the exercise of such right should be clearly exercised; a provision is made for exceptional circumstances that do not apply the right; the exercise of that right is extended to the whole of the proceedings. In the case of a procedure setting, the following procedure should be set to suit the system: a notification process; an application procedure; an audit procedure; a waiver process. In order to make the defendant's close relatives exercise the right to refuse, there are both specific legal rules and strict procedures to guarantee.
【學位授予單位】：華中師范大學
【學位級別】：碩士
【學位授予年份】：2017
【分類號】：D925.2
本文編號：2506669
[Abstract]:The right of the so-called close relatives is a special right to refuse to provide testimony to the judicial organ in accordance with the law on the basis of a person who has a special status relationship with the criminal suspect and the defendant. The two law-based countries have made a different degree of provision on this right in the early stages. However, in the history of our criminal procedure law, the system has been absent for a long time. Although on March 14,2012, the "the immunity of the relatives in court" became one of the highlights of our new Code of Criminal Procedure, that is, the first time that the form of litigation legislation has taken a valuable step in the maintenance of family relations, respect and human rights, whether to promote the construction of the socialist rule of law in a comprehensive way, It is of great practical significance to adapt to the needs of judicial practice reform. However, the provision only refers to the "the immunity of the relatives in court", which neither defines the basic meaning of the "the immunity of the relatives in court", nor specifies the scope of the relative to enjoy such immunity, the conditions of the exercise, the mode of exercise and the procedural guarantee, etc., that is, the system of the right of refusal of the close relatives to date. The present situation of judicial practice in our country requires that we keep up with the pace of the development of the times, to carry on the implicit thought and the rational use of the advanced legislative experience of the foreign countries, and to build a complete system of the right-to-close relatives of the close relatives with Chinese characteristics. On the basis of this, the article takes the "On the Construction of the System of the Protection of the Property of the Near-relatives with Chinese Characteristics;" as the subject, first, based on the basic theory explanation of the system of the close relatives, the concept, characteristic, value and the necessity of constructing the system in our country are introduced. And feasibility. Secondly, the main causes and disadvantages of the incomplete right system of the close relatives of our country are analyzed in depth. Thirdly, through the comparative study, this paper discusses the basic characteristics of the two-law system and the significance of the enlightenment to our country, and finally expounds the basic idea of constructing a complete and close-relative refusal system with Chinese characteristics. We are looking forward to the reform of the judicial system in our country and the development of our country's legal process. The full text mainly includes the following four parts: the first part, the interpretation of the basic theory of the close-relative refusal system. First of all, the basic concept and characteristics of the right of the close relatives' refusal of proof are described. In addition to the above basic connotation, the close relatives' refusal of proof also has the following characteristics: it is a legal right; the close relatives have the ability to testify; the right of the right is to be in the hands of the defendant; the content of the refusal is to be followed. Secondly, the main value of the construction of the system is discussed: it is beneficial to reflect the humanization of the law; it is beneficial to the reflection of the human basic emotion; and it has the recognition and guarantee value of the basic human rights. Finally, this paper discusses the necessity and feasibility of building a complete and close-relative refusal system in China. The necessity is mainly embodied in the following aspects: it is the basic requirement of the balance of rights and obligations; it is the result of the right and power to the law; it is in line with the idea that the law is not strong; it is in line with the traditional Chinese culture and the basic moral and moral spirit of our country. The system not only has the above-mentioned necessity, but also is completely feasible. The second part, in-depth analysis of the causes and disadvantages of the incomplete system of the close relatives of our country. The long-term absence of the right system of the close relatives of our country is still incomplete, and its main reasons are: the influence of the duty-based thought; the influence of the over-criticism of the old legal system; the influence of the light procedural law under the heavy substantive law. The disadvantages are as follows: the violation of the individual's freedom, the departure from the human nature, the development of social harmony, the reduction of the quality of the evidence, the obstruction of the proceedings, and the lack of authority to establish the law. The third part is to compare the legislative provisions and practice of the two legal systems about the system of the close relatives' refusal of proof. Although the two legal systems are not consistent with the legislative provisions of the system, it is of great significance to the establishment of a complete system of close relatives' refusal of proof with Chinese characteristics in the following respects: it is necessary to specify the scope of the exercise of this right; The conditions and means of the exercise of that right must be clearly defined; it is important to set up a legal procedure to guarantee the true realization of that right. The fourth part is to discuss the idea of building a complete system of close relatives' refusal of proof with Chinese characteristics. In order to further promote the judicial reform of our country, we should start with the specific content arrangement and the procedure. In that context of the specific content arrangement, it should be clear that the scope of the near-family should be clearly defined; the scope of the exercise of such right should be clearly exercised; a provision is made for exceptional circumstances that do not apply the right; the exercise of that right is extended to the whole of the proceedings. In the case of a procedure setting, the following procedure should be set to suit the system: a notification process; an application procedure; an audit procedure; a waiver process. In order to make the defendant's close relatives exercise the right to refuse, there are both specific legal rules and strict procedures to guarantee.
【學位授予單位】：華中師范大學
【學位級別】：碩士
【學位授予年份】：2017
【分類號】：D925.2
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