行政执法证据与刑事证据的程序衔接问题研究
发布时间：2018-10-07 18:16
【摘要】：为解决行政执法与刑事司法衔接机制中的证据衔接问题,修正后的《刑事诉讼法》第52条第2款对两种证据的衔接作了专门规定。《刑事诉讼法》第52条第2款规定：“行政机关在行政执法和查办案件过程中收集的物证、书证、视听资料、电子数据等证据材料,在刑事诉讼中可以作为证据使用。”本条款的出台正是基于司法实践的需求。我国立法与司法均实行二元的违法犯罪处置模式,由行政机关处理处理一般违法行为,由刑事司法机关处理达到一定危害程度并触犯刑法的犯罪行为。明确行政执法证据在刑事诉讼中的地位不仅有利于推动两法顺利衔接,提高诉讼效率,而且意味着行政执法证据材料在刑事诉讼中的法律地位得以明确,“有望消除以往由于侦查机关重新取证存在的隐患”。 但是,新刑诉法第52条第2款的模糊更加需要我们从学理上去认真分析这一论题。在我国目前的刑事诉讼制度下,行政执法证据作为刑事证据使用是否与刑事证据法理相悖?行政执法证据进入刑事诉讼的现实合理性是什么?可能会出现什么问题?对于“非法”行政执法证据材料,司法机关该如何处理?公安司法机关在刑事诉讼中是否应一律排除言词类行政执法证据?本文通过运用案例分析、实证研究、比较研究与法经济学、历史文献法等研究方法,对该论题进行了详细的论证。 本论文共分为五章。 第一章“界定与比较：行政执法证据与刑事证据”,在界定行政执法证据与刑事证据概念的基础上,对行政鉴定意见、参与人陈述等几种特定类型的行政执法证据进行了分析,并对两种证据进行了客观比较。 第二章“解释与剖析：行政执法证据与刑事证据程序衔接的立法基础”论述了两种证据衔接的立法背景,并重点对新刑事诉讼法第52条第2款的立法原意进行了解读。 第三章“语境与困境：行政执法证据与刑事证据衔接的必要性与现实问题”分析了两种证据衔接的必要性,主要体现为追诉犯罪的客观规律、诉讼经济的理性选择和打击犯罪的现实需求。然后论述了新刑诉法实施一年后所面临的问题,如立法模糊、可能侵犯被追诉人辩护权、司法实践不统一等。 第四章“衔接与适用：实物类行政执法证据作为刑事证据使用”阐述了实物类行政执法证据与刑事证据的衔接原则,进而论述了两种证据衔接的主体、程序审查、审查效果等。在“审查效果”一节,根据程序合法性的不同,行政执法证据同样会出现三种情况：合法、瑕疵和非法。 第五章“理性与扩张：言词类行政执法证据作为刑事证据使用”,提出行政程序中的鉴定意见可以作为刑事证据使用。同时,行政执法证据中的人证原则上不能进入刑事诉讼程序,但存在三种例外：自认、重新取证不能并有其他证据相印证和作为弹劾证据使用。
[Abstract]:In order to solve the problem of evidence convergence between administrative law enforcement and criminal justice, Article 52, paragraph 2, of the amended Code of Criminal procedure specifically provides for the convergence of the two kinds of evidence. Article 52, paragraph 2, of the Code of Criminal procedure states: "material evidence and documentary evidence collected by administrative organs in the course of administrative law enforcement and investigation of cases, Audiovisual materials, electronic data and other evidentiary materials may be used as evidence in criminal proceedings. " The introduction of this article is based on the needs of judicial practice. Both the legislation and the judicature of our country implement the dualistic mode of dealing with illegal crimes. The administrative organs deal with the general illegal acts and the criminal judicial organs deal with the criminal acts which reach a certain degree of harm and violate the criminal law. Clarifying the status of administrative law enforcement evidence in criminal proceedings is not only conducive to promoting the smooth convergence of the two laws and improving the efficiency of litigation, but also means that the legal status of administrative law enforcement evidence materials in criminal proceedings is clear. "it is hoped that the hidden dangers existing in the past as a result of the re-gathering of evidence by the investigative authorities" will be eliminated. However, the ambiguity of Article 52 (2) of the new Criminal procedure Law requires us to analyze this topic from a theoretical point of view. Under the present criminal procedure system of our country, is the use of administrative law enforcement evidence as criminal evidence contrary to the legal principle of criminal evidence? What is the realistic rationality of administrative law enforcement evidence entering criminal proceedings? What might happen? For "illegal" administrative law enforcement evidence materials, how should the judicial organs handle? Should the public security and judicial organs rule out all kinds of administrative law enforcement evidence in criminal proceedings? In this paper, case study, empirical study, comparative study, law and economics, historical literature and other research methods are used to demonstrate this topic in detail. This thesis is divided into five chapters. The first chapter, "definition and comparison: administrative law enforcement evidence and criminal evidence", on the basis of defining the concept of administrative law enforcement evidence and criminal evidence, analyzes several specific types of administrative law enforcement evidence, such as administrative expertise opinions, participants' statements, etc. The two kinds of evidence are compared objectively. The second chapter, "explanation and analysis: the legislative basis of the connection between administrative law enforcement evidence and criminal evidence procedure", discusses the legislative background of the two kinds of evidence convergence, and emphatically interprets the legislative intent of article 52, paragraph 2, of the new criminal procedure law. The third chapter, "context and predicament: the necessity and reality of the connection between administrative law enforcement evidence and criminal evidence", analyzes the necessity of two kinds of evidence convergence, mainly reflected in the objective law of prosecution of crime. The rational choice of litigation economy and the realistic demand of cracking down on crime. Then it discusses the problems faced after the implementation of the new Criminal procedure Law one year later, such as vague legislation, possible infringement of the accused person's right to defense, inconsistent judicial practice, and so on. The fourth chapter, "cohesion and application: the use of physical type of administrative law enforcement evidence as criminal evidence", expounds the principle of connection between the physical type of administrative law enforcement evidence and the criminal evidence, and then discusses the main body of the two kinds of evidence linking up, the procedure review, the examination effect, and so on. In the "Review effect" section, according to different procedural legality, administrative law enforcement evidence will also appear in three situations: legal, defective and illegal. Chapter five, "rationality and expansion: the use of administrative law enforcement evidence as criminal evidence", puts forward that the appraisal opinion in administrative procedure can be used as criminal evidence. At the same time, the evidence of administrative law enforcement can not enter the criminal procedure in principle, but there are three kinds of exceptions: admission, reevidence can not be confirmed by other evidence and used as impeachment evidence.
【学位授予单位】：山东大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D925.2;D922.1
，
本文编号：2255193
[Abstract]:In order to solve the problem of evidence convergence between administrative law enforcement and criminal justice, Article 52, paragraph 2, of the amended Code of Criminal procedure specifically provides for the convergence of the two kinds of evidence. Article 52, paragraph 2, of the Code of Criminal procedure states: "material evidence and documentary evidence collected by administrative organs in the course of administrative law enforcement and investigation of cases, Audiovisual materials, electronic data and other evidentiary materials may be used as evidence in criminal proceedings. " The introduction of this article is based on the needs of judicial practice. Both the legislation and the judicature of our country implement the dualistic mode of dealing with illegal crimes. The administrative organs deal with the general illegal acts and the criminal judicial organs deal with the criminal acts which reach a certain degree of harm and violate the criminal law. Clarifying the status of administrative law enforcement evidence in criminal proceedings is not only conducive to promoting the smooth convergence of the two laws and improving the efficiency of litigation, but also means that the legal status of administrative law enforcement evidence materials in criminal proceedings is clear. "it is hoped that the hidden dangers existing in the past as a result of the re-gathering of evidence by the investigative authorities" will be eliminated. However, the ambiguity of Article 52 (2) of the new Criminal procedure Law requires us to analyze this topic from a theoretical point of view. Under the present criminal procedure system of our country, is the use of administrative law enforcement evidence as criminal evidence contrary to the legal principle of criminal evidence? What is the realistic rationality of administrative law enforcement evidence entering criminal proceedings? What might happen? For "illegal" administrative law enforcement evidence materials, how should the judicial organs handle? Should the public security and judicial organs rule out all kinds of administrative law enforcement evidence in criminal proceedings? In this paper, case study, empirical study, comparative study, law and economics, historical literature and other research methods are used to demonstrate this topic in detail. This thesis is divided into five chapters. The first chapter, "definition and comparison: administrative law enforcement evidence and criminal evidence", on the basis of defining the concept of administrative law enforcement evidence and criminal evidence, analyzes several specific types of administrative law enforcement evidence, such as administrative expertise opinions, participants' statements, etc. The two kinds of evidence are compared objectively. The second chapter, "explanation and analysis: the legislative basis of the connection between administrative law enforcement evidence and criminal evidence procedure", discusses the legislative background of the two kinds of evidence convergence, and emphatically interprets the legislative intent of article 52, paragraph 2, of the new criminal procedure law. The third chapter, "context and predicament: the necessity and reality of the connection between administrative law enforcement evidence and criminal evidence", analyzes the necessity of two kinds of evidence convergence, mainly reflected in the objective law of prosecution of crime. The rational choice of litigation economy and the realistic demand of cracking down on crime. Then it discusses the problems faced after the implementation of the new Criminal procedure Law one year later, such as vague legislation, possible infringement of the accused person's right to defense, inconsistent judicial practice, and so on. The fourth chapter, "cohesion and application: the use of physical type of administrative law enforcement evidence as criminal evidence", expounds the principle of connection between the physical type of administrative law enforcement evidence and the criminal evidence, and then discusses the main body of the two kinds of evidence linking up, the procedure review, the examination effect, and so on. In the "Review effect" section, according to different procedural legality, administrative law enforcement evidence will also appear in three situations: legal, defective and illegal. Chapter five, "rationality and expansion: the use of administrative law enforcement evidence as criminal evidence", puts forward that the appraisal opinion in administrative procedure can be used as criminal evidence. At the same time, the evidence of administrative law enforcement can not enter the criminal procedure in principle, but there are three kinds of exceptions: admission, reevidence can not be confirmed by other evidence and used as impeachment evidence.
【学位授予单位】：山东大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D925.2;D922.1
，
本文编号：2255193
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