淺析新刑事訴訟法背景下的偵查人員出庭作證制度
發(fā)布時間：2019-07-05 07:42
【摘要】：無論是在英美法系還是在大陸法系,偵查人員出庭制度都是普遍存在的,而在我國的司法實踐中偵查人員出庭作證確實十分罕見的,這與世界主流是不相符的,雖然要考慮我們國家的國情,但是人類所共同的價值追求是一致的,公平和正義在任何國家都是需要的,完善這偵查人員出庭作證制度對于我國法治建設有著重要的意義。 目前，偵查人員出庭作證制度在我國的建立還處于起始階段。無論在理論方面還是在實踐中，偵查人員出庭作證制度的構建都存在一定的障礙。在過往的理論分析中，學者們往往將偵查人員不同的身份集合在一個點上，進行整體性的分析。這種分析方法只是就理論分析理論，沒有將理論與實踐結合分析。這就造成了諸多理論障礙、增加了理論的理解難度，甚至是理論分析對實踐沒有任何的指導作用。筆者認為作為理論研究者應該著眼于現(xiàn)實，以我國偵查人員出庭作證的實際情況為研究對象，構建偵查人員出庭作證制度。新《刑事訴訟法》的頒布與實施為此提供了清晰的邏輯脈絡。 根據(jù)《非法證據(jù)排除規(guī)定》、《辦理死刑案件證據(jù)規(guī)定》、新《刑事訴訟法》的有關規(guī)定，偵查人員出庭作證可以劃分為三種模式：以“定罪事實”證人的身份；以“量刑事實”證人的身份；以“證據(jù)合法性”證人的身份。偵查人員以“定罪事實”證人的身份出庭作證，適用普通證人出庭作證規(guī)則，審判機關有權依法對此類偵查人員實施強制出庭措施，同時偵查人員也有權要求司法機關保障其人身安全和其他權利的實現(xiàn)；偵查人員以“量刑事實”證人的身份出庭作證，具有明顯的職業(yè)性、專業(yè)性和不可代替性。在量刑程序越來越重要受重視的當下，偵查人員為量刑情節(jié)出庭作證制度的建立非常重要；偵查人員以“證據(jù)合法性”證人的身份出庭作證，是三種模式中理論爭議最大、實踐難度最高的一種，但是這種出庭作證的模式，關系到非法證據(jù)排除和被告人基本的人權保障，所以必須要予以重視。雖然偵查人員出庭作證制度的實施，，目前還存在理論和實踐兩方面的諸多障礙，但只要研究者以實踐為根本，對偵查人員三種不同的作證模式分別研究，輔以證人出庭作證制度的完善、司法獨立的實現(xiàn)，建立起一套成熟的偵查人員出庭作證制度指日可待。
[Abstract]:Whether in the common law system or in the civil law system, the system of investigators appearing in court is universal, and it is indeed very rare for investigators to testify in court in the judicial practice of our country, which is inconsistent with the mainstream of the world. Although the national conditions of our country should be taken into account, the common value pursuit of mankind is consistent, and fairness and justice are needed in any country. It is of great significance to perfect the system of testifying in court for the construction of the rule of law in our country. At present, the establishment of the system of investigators testifying in court in our country is still in the initial stage. Whether in theory or in practice, there are some obstacles to the construction of investigators testifying in court. In the past theoretical analysis, scholars often set the different identities of investigators at one point to carry out a holistic analysis. This analysis method is only on the theory of theoretical analysis, not on the combination of theory and practice. This has caused many theoretical obstacles, increased the difficulty of understanding the theory, and even the theoretical analysis has no guiding effect on practice. The author believes that as a theoretical researcher, we should focus on the reality, take the actual situation of investigators testifying in court as the research object, and construct the system of investigators testifying in court. The promulgation and implementation of the new Criminal procedure Law provides a clear logical context for this purpose. According to the provisions on the exclusion of illegal evidence, the provisions on the handling of evidence in death penalty cases and the relevant provisions of the new Criminal procedure Law, investigators can be divided into three modes to testify in court: as witnesses of "conviction facts", as witnesses of "sentencing facts" and as witnesses of "legality of evidence". Investigators testify in court as "convicted fact" witnesses, and apply the rules of ordinary witnesses to testify in court. Judicial organs have the power to impose compulsory court appearance measures on such investigators in accordance with the law, and investigators also have the right to request judicial organs to ensure the realization of their personal safety and other rights. Investigators testify in court as witnesses of "sentencing facts", which is obviously professional, professional and irreplaceable. At a time when sentencing procedures are paid more and more important attention, it is very important for investigators to testify in court for sentencing circumstances. Investigators testify in court as "evidence legitimacy" witnesses, which is the most controversial in theory and the most difficult in practice, but this mode of testifying in court is related to the exclusion of illegal evidence and the basic human rights protection of the defendant, so we must pay attention to it. Although there are still many obstacles in theory and practice in the implementation of the system for investigators to testify in court, as long as the researchers take practice as the foundation, they study the three different testimony modes of investigators separately, supplemented by the perfection of the system of witness appearing in court and the realization of judicial independence, and the establishment of a set of mature system for investigators to testify in court is just around the corner.
【學位授予單位】：江西師范大學
【學位級別】：碩士
【學位授予年份】：2014
【分類號】：D925.2
本文編號：2510367
[Abstract]:Whether in the common law system or in the civil law system, the system of investigators appearing in court is universal, and it is indeed very rare for investigators to testify in court in the judicial practice of our country, which is inconsistent with the mainstream of the world. Although the national conditions of our country should be taken into account, the common value pursuit of mankind is consistent, and fairness and justice are needed in any country. It is of great significance to perfect the system of testifying in court for the construction of the rule of law in our country. At present, the establishment of the system of investigators testifying in court in our country is still in the initial stage. Whether in theory or in practice, there are some obstacles to the construction of investigators testifying in court. In the past theoretical analysis, scholars often set the different identities of investigators at one point to carry out a holistic analysis. This analysis method is only on the theory of theoretical analysis, not on the combination of theory and practice. This has caused many theoretical obstacles, increased the difficulty of understanding the theory, and even the theoretical analysis has no guiding effect on practice. The author believes that as a theoretical researcher, we should focus on the reality, take the actual situation of investigators testifying in court as the research object, and construct the system of investigators testifying in court. The promulgation and implementation of the new Criminal procedure Law provides a clear logical context for this purpose. According to the provisions on the exclusion of illegal evidence, the provisions on the handling of evidence in death penalty cases and the relevant provisions of the new Criminal procedure Law, investigators can be divided into three modes to testify in court: as witnesses of "conviction facts", as witnesses of "sentencing facts" and as witnesses of "legality of evidence". Investigators testify in court as "convicted fact" witnesses, and apply the rules of ordinary witnesses to testify in court. Judicial organs have the power to impose compulsory court appearance measures on such investigators in accordance with the law, and investigators also have the right to request judicial organs to ensure the realization of their personal safety and other rights. Investigators testify in court as witnesses of "sentencing facts", which is obviously professional, professional and irreplaceable. At a time when sentencing procedures are paid more and more important attention, it is very important for investigators to testify in court for sentencing circumstances. Investigators testify in court as "evidence legitimacy" witnesses, which is the most controversial in theory and the most difficult in practice, but this mode of testifying in court is related to the exclusion of illegal evidence and the basic human rights protection of the defendant, so we must pay attention to it. Although there are still many obstacles in theory and practice in the implementation of the system for investigators to testify in court, as long as the researchers take practice as the foundation, they study the three different testimony modes of investigators separately, supplemented by the perfection of the system of witness appearing in court and the realization of judicial independence, and the establishment of a set of mature system for investigators to testify in court is just around the corner.
【學位授予單位】：江西師范大學
【學位級別】：碩士
【學位授予年份】：2014
【分類號】：D925.2
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