我國“親告罪”的立法完善
發(fā)布時間：2019-03-30 20:28
【摘要】：雖然親告罪在當前我國刑法中只有五個條文,但是關(guān)于其規(guī)定卻由來已久,早在唐代的法典中已有著述。最典型的莫過于關(guān)于父母和子女間“隱匿”減輕罪責(zé)的條文。中國優(yōu)秀傳統(tǒng)文化得以延續(xù)和繼承,對親告罪的規(guī)定正是其良好地體現(xiàn)。親告罪涉及的犯罪較輕,大多是對個人的名譽或財產(chǎn)的侵害。況且,被害人和侵害人往往是特定關(guān)系人,這就與非親告罪雙方通常是互不相識的陌生人有所不同。如此,奠定了親告罪的特殊制度性。親告罪蘊涵著有價值的傳統(tǒng)文化,其所代表的自由和效率等價值也與現(xiàn)代化的西方思想相吻合,具有重要的理論基礎(chǔ)。同時,親告罪的指導(dǎo)理念與我國人情社會的大環(huán)境相契合,具備存在的現(xiàn)實土壤。但是,正如開頭所言,關(guān)于其規(guī)定過于簡單,沒有形成足夠的系統(tǒng)性和完整性。近年來,基于對人權(quán)的保護,充分尊重個人自由等思想,與親告罪的立法價值相契合。但是,完全依靠被害人進行訴訟與國家公權(quán)力是否介入、何時介入以及如何介入等問題,成為需要解決的難題。綜合分析來看,親告罪研究意義深遠,但是我國關(guān)于親告罪的制度規(guī)定較少,并且司法實踐中出現(xiàn)的問題也亟待解決。那么,對親告罪的完善就顯得尤為重要。本文通過對親告罪理論價值和實踐基礎(chǔ)的分析,肯定其存在的現(xiàn)實必要性,針對當前刑法中出現(xiàn)的一些制度缺陷,提出完善建議。主要包括三個部分:首先,對親告罪的概念、性質(zhì)、所存在的理論和實踐基礎(chǔ)進行闡述。指出親告罪多適用于輕罪、侵犯的是私法益以及被害人和侵害人具有一定的特殊關(guān)系。接著闡述了親告罪所體現(xiàn)的價值,即自由、秩序、正義和效率價值,對它們的具體分析,得出親告罪的理論指導(dǎo)理念。親告罪主要體現(xiàn)了對自由和效率價值的推崇,通過我國現(xiàn)實分析,得出親告罪的設(shè)定具有理論和實踐的基礎(chǔ)。其次,指出親告罪的現(xiàn)狀,并分析它所存在的缺陷。從實體和程序兩個方面來進行敘述,通過對當前立法上的規(guī)定分析,得出一些問題,包括親告罪范圍過窄,僅有五種罪名規(guī)定;并且侵占罪的告訴模式不當導(dǎo)致親告罪的整體設(shè)定不均衡;被害人缺乏國家公權(quán)力的保護,取證困難并且偵查、檢察機關(guān)容易誤受理等問題。最后,針對前文所述問題的一些建議,包括適當擴大親告罪的范圍、完善侵占罪的告訴模式、完善其訴訟程序模式以及拓寬被害人的救濟途徑等。本文期望通過三個部分的描述,對親告罪設(shè)定的基礎(chǔ)、問題及完善建議進行分析,提出幾點建議,對我國親告罪的發(fā)展有所幫助。
[Abstract]:Although there are only five articles in the criminal law of our country at present, the stipulation of affidavit has a long history, and it has been written in the code of Tang Dynasty. Nothing is more typical than the provisions on concealment between parents and children. The fine traditional culture of China can be continued and inherited, and the stipulation of affidavit is a good embodiment. The crime of affidavit is relatively minor, most of which is against the reputation or property of the individual. Moreover, the victims and the infringers are often specific contacts, which is different from the strangers who do not know each other on both sides of the crime. In this way, laid down the special institutional nature of affidavit. Affidavit contains a valuable traditional culture, the freedom and efficiency represented by the crime is also consistent with the modern western thought, and has an important theoretical basis. At the same time, the guiding idea of affidavit coincides with the environment of human society in our country, and has the realistic soil of existence. But, as stated at the beginning, the rules are too simple to form sufficient systematicness and integrity. In recent years, based on the protection of human rights and full respect for individual freedom, it is consistent with the legislative value of affidavit. However, it is difficult to rely on the victim to intervene in litigation and state power, when to intervene and how to intervene. Comprehensive analysis shows that the research on the crime of affidavit is of far-reaching significance, but there are few regulations on the crime of affidavit in our country, and the problems appearing in the judicial practice need to be solved urgently. Then, the perfection of the crime of affidavit appears to be particularly important. Based on the analysis of the theoretical value and practical basis of the crime of affidavit, this paper affirms the realistic necessity of its existence, and puts forward some suggestions for improving the system defects in the current criminal law. It mainly includes three parts: firstly, it expounds the concept, nature, theory and practice foundation of affidavit. It is pointed out that the crime of affidavit is mostly applicable to misdemeanour, the infringement of private legal interests and the special relationship between the victim and the infringer. Then it expounds the value of affidavit, that is, freedom, order, justice and efficiency, analyzes them concretely, and draws the theoretical guiding idea of affidavit. Affidavit mainly embodies the value of freedom and efficiency. Through the analysis of the reality of our country, it is concluded that the establishment of affidavit is based on theory and practice. Secondly, it points out the status quo of affidavit, and analyzes its defects. From the two aspects of entity and procedure, through the analysis of the current legislation, we get some problems, including the narrow scope of affidavit, there are only five kinds of crime provisions; The improper telling mode of embezzlement crime leads to the imbalance of the overall setting of affidavit crime; the victim lacks the protection of the state public power, the difficulty of obtaining evidence and the investigation, and the procuratorial organ is prone to mistakenly accept it and so on. Finally, some suggestions for the problems mentioned above, including appropriate expansion of the scope of the crime of affidavit, improvement of the crime of embezzlement to tell the model, improve its procedural model and expand the victims of relief, and so on. Through the description of three parts, this paper hopes to analyze the foundation, problems and suggestions of the establishment of affidavit, and put forward some suggestions, which will be helpful to the development of affidavit in our country.
【學(xué)位授予單位】：吉林大學(xué)
【學(xué)位級別】：碩士
【學(xué)位授予年份】：2017
【分類號】：D924.3
本文編號：2450453
[Abstract]:Although there are only five articles in the criminal law of our country at present, the stipulation of affidavit has a long history, and it has been written in the code of Tang Dynasty. Nothing is more typical than the provisions on concealment between parents and children. The fine traditional culture of China can be continued and inherited, and the stipulation of affidavit is a good embodiment. The crime of affidavit is relatively minor, most of which is against the reputation or property of the individual. Moreover, the victims and the infringers are often specific contacts, which is different from the strangers who do not know each other on both sides of the crime. In this way, laid down the special institutional nature of affidavit. Affidavit contains a valuable traditional culture, the freedom and efficiency represented by the crime is also consistent with the modern western thought, and has an important theoretical basis. At the same time, the guiding idea of affidavit coincides with the environment of human society in our country, and has the realistic soil of existence. But, as stated at the beginning, the rules are too simple to form sufficient systematicness and integrity. In recent years, based on the protection of human rights and full respect for individual freedom, it is consistent with the legislative value of affidavit. However, it is difficult to rely on the victim to intervene in litigation and state power, when to intervene and how to intervene. Comprehensive analysis shows that the research on the crime of affidavit is of far-reaching significance, but there are few regulations on the crime of affidavit in our country, and the problems appearing in the judicial practice need to be solved urgently. Then, the perfection of the crime of affidavit appears to be particularly important. Based on the analysis of the theoretical value and practical basis of the crime of affidavit, this paper affirms the realistic necessity of its existence, and puts forward some suggestions for improving the system defects in the current criminal law. It mainly includes three parts: firstly, it expounds the concept, nature, theory and practice foundation of affidavit. It is pointed out that the crime of affidavit is mostly applicable to misdemeanour, the infringement of private legal interests and the special relationship between the victim and the infringer. Then it expounds the value of affidavit, that is, freedom, order, justice and efficiency, analyzes them concretely, and draws the theoretical guiding idea of affidavit. Affidavit mainly embodies the value of freedom and efficiency. Through the analysis of the reality of our country, it is concluded that the establishment of affidavit is based on theory and practice. Secondly, it points out the status quo of affidavit, and analyzes its defects. From the two aspects of entity and procedure, through the analysis of the current legislation, we get some problems, including the narrow scope of affidavit, there are only five kinds of crime provisions; The improper telling mode of embezzlement crime leads to the imbalance of the overall setting of affidavit crime; the victim lacks the protection of the state public power, the difficulty of obtaining evidence and the investigation, and the procuratorial organ is prone to mistakenly accept it and so on. Finally, some suggestions for the problems mentioned above, including appropriate expansion of the scope of the crime of affidavit, improvement of the crime of embezzlement to tell the model, improve its procedural model and expand the victims of relief, and so on. Through the description of three parts, this paper hopes to analyze the foundation, problems and suggestions of the establishment of affidavit, and put forward some suggestions, which will be helpful to the development of affidavit in our country.
【學(xué)位授予單位】：吉林大學(xué)
【學(xué)位級別】：碩士
【學(xué)位授予年份】：2017
【分類號】：D924.3
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，本文編號：2450453
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