检察官违反客观义务追责制度研究

发布时间：2018-06-21 16:25

本文选题：客观义务 + 检察官　；参考：《安徽大学》2017年硕士论文

【摘要】：我国对检察官客观义务的研究主要来源于日本学者松本一郎所写的《检察官的客观义务》和台湾学者林珏雄先生所著的《检察官论》,这些著作对检察官客观义务的内涵、渊源以及角色冲突等进行了详细的阐述。检察官客观义务最初产生于德国,赋予了检察官超越当事人的客观义务,检察官客观义务的概念早在我国改革开放前期就被引进,但直到21世纪初才成为学界和司法实践部门的研究热点专题,并被各界逐渐予以认可和接受,且结合我国特色的检察官制度取得了一定深度的研究成果。我国现行的《刑事诉讼法》中明确规定了检察官在侦查、审查起诉以及诉讼监督方面的客观义务,也对检察官违反客观义务需要追究司法责任作出规定,但对于谁来追责更合适、追究哪些人责任、追究什么样的责任、如何追究责任并没有相关法律文件予以明确规定,使得检察官客观义务丧失了可操作性和实效性。解决检察官履行客观义务实效性不足的关键,首先是应当根据我国现行检察制度的特点以及法治发展的要求,对我国构建检察官客观义务责任追究制度的法理基础进行分析;其次通过借鉴域外法治国家已经建立的检察官违反客观义务或出现不端行为时的责任追究制度,结合我国现行的检察官责任认定和追究的法律规定,在构建检察官违反客观义务责任时,其一,确立合理的追责原则,避免盲目追责使检察官产生恐慌心理、从而打击了检察官的办案动力;其二,解答责任追究制度中"谁追责更合适"的问题,设置独立于司法机关的追责机构,不仅能够规避司法机关内部自查自纠的弊端,还能更好地解决主动追责程序启动难的问题;其三,既然名曰检察官客观义务,那么该义务的适用主体自然是"检察官",然而何谓"检察官",其具体范围究竟应当包括哪些人员?这也是违反客观义务追责制度中务必回答的问题之一;其四,完善违反客观义务责任追究的方式,通过明晰追责事由和改善追责措施等,从而达到落实责任和惩戒的效果;其五,我国每年都会出现众多司法人员违法违纪的现象,但追究的情况并不是很多,其中一个重要原因就是启动难,因此,在保障责任主体权利的基础上,完善线索来源与受理、听取陈述与申辩、申诉和复查、解除处理环节是追责程序有效推进的保障。最后,检察官客观义务不是一项独立的制度,在检察官独立性不高、自由裁量权还不完备、内部考核机制束缚以及当下我国提倡的刑事和解制度中强化侦查机关权力而弱化检察官客观义务等条件下,需要通过优化权力配置以及其他的配套制度保障才可以全面发挥其作用。
[Abstract]:Our country's research on the objective duties of prosecutors is mainly derived from the objective duties of prosecutors written by Japanese scholar Ichiro Matsumoto and the Theory of prosecutors by Taiwanese scholar Mr. Lin Kak-hsiung. These works have implications for prosecutors' objective obligations. The origin and role conflict are elaborated in detail. The objective obligation of public procurators originated in Germany, and endowed prosecutors with objective obligations beyond the parties. The concept of objective obligations of prosecutors was introduced in the early stage of reform and opening up in China. However, it was not until the beginning of the 21st century that it became a hot research topic in academic circles and judicial practice departments, and was gradually recognized and accepted by all walks of life. The present Criminal procedure Law of China clearly stipulates the objective obligations of prosecutors in investigation, examination and prosecution, as well as in the supervision of proceedings, and also stipulates that procurators who violate objective obligations need to be investigated for judicial responsibility. However, it is more appropriate for who to pursue the responsibility, who is responsible, what kind of responsibility, how to investigate the responsibility and how to investigate the responsibility has not been clearly stipulated in the relevant legal documents, which makes the objective obligation of prosecutors lose the maneuverability and effectiveness. The key to solve the problem is to analyze the legal basis of the procurator's objective duty investigation system according to the characteristics of the current procuratorial system and the requirements of the development of the rule of law. Secondly, by drawing lessons from the system of accountability of public procurators who violate objective obligations or misbehave, and combining with the existing legal provisions on the identification and investigation of procurators' liability in our country, we can draw lessons from the established system of public procurators in foreign countries under the rule of law. In the construction of prosecutors' responsibility for violating objective obligations, one is to establish a reasonable principle of pursuing responsibility, and to avoid blind pursuit of responsibility, which makes prosecutors panic and thus strikes the motive force of prosecutors' handling of cases. To answer the question of "who is more appropriate to pursue the responsibility" in the accountability system, to set up an institution independent of the judicial organs, not only can avoid the malpractice of self-investigation and self-correction within the judicial organs, but also can better solve the problem that it is difficult to start the procedure of actively pursuing the responsibility; Third, since the name of the objective obligations of prosecutors, then the application of this obligation is naturally "prosecutors", but what is "prosecutors", its specific scope should include who? This is also one of the questions that must be answered in the system of pursuing responsibility for violation of objective obligation. Fourth, perfect the way of investigating the responsibility of violating objective obligation, and achieve the effect of responsibility and punishment by clarifying the cause of responsibility and improving the measures of pursuing responsibility. Fifthly, there are many cases of judicial personnel breaking the law and violating discipline every year in our country, but there are not many cases of investigation. One of the important reasons is that it is difficult to start up. Therefore, on the basis of safeguarding the rights of the subject of responsibility, Perfecting the clue source and accepting, listening to the statement and defense, appealing and rechecking, removing the link of handling are the guarantee of the effective promotion of the procedure of pursuing responsibility. Finally, the public prosecutor's objective obligation is not an independent system, where the prosecutor's independence is not high, and the discretion is not complete. Under such conditions as the restraint of the internal examination mechanism and the strengthening of the powers of the investigation organs and the weakening of the objective obligations of the procurators in the criminal reconciliation system advocated in our country at present, It is necessary to optimize the allocation of power and other supporting system to fully play its role.
【学位授予单位】：安徽大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D926.3;D925.2

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