论构建我国现代刑事侦查讯问制度

【作者】 吴孝华；

【导师】 张宇润；

【作者基本信息】 安徽大学 ， 法律， 2007， 硕士

【摘要】 刑事诉讼侦查阶段的“讯问犯罪嫌疑人”,是一项重要的取得证据和获取线索的侦查方法和手段,对于揭露和证实犯罪往往起到关键的作用。从古到今,受到各国的高度重视。由于在程序设计上存在着重大缺陷,加之执法观念、侦查人员的素质、相关保障制度等诸多方面的不足,我国刑事诉讼侦查讯问程序出现了许多非常严重的问题:在权利告知方面,由于权利告知不规范,导致许多犯罪嫌疑人难以充分行使自己的权利;在律师帮助方面,律师的参与范围极其有限,犯罪嫌疑人难以获得法律援助;在对强迫性讯问的抑制方面,现行法对讯问的间隔时间、地点以及讯问结果的固定规定的较为笼统,对侦查讯问程序难以真正起到约束作用;在对讯问程序的司法控制方面,只靠侦查机关负责人实施的内部制约或者检察机关的法律监督,讯问程序将难以受到有效的司法控制;在非法证据排除方面,我国目前建立的非法证据排除规则极为有限,犯罪嫌疑人供述的自愿性在实践中很难得到保障。针对实践中屡禁不止的刑讯逼供现象,我国《刑事诉讼法》的再修改应当在立足于我国具体国情,积极借鉴国外的有益经验和做法,进一步加强对讯问权的监督和制约,科学设计有关口供的收集、运用等具体环节,防止侦查人员随意滥用权力。为此,建立我国现代侦查讯问制度应当遵循“禁止先行讯问原则”、“禁止刑讯逼供原则”、“公开与秘密相结合原则”、“法定讯问原则”和“不轻信口供原则”,从程序上规范侦查讯问行为,制约国家公权力的不当行使,以体现侦查讯问的程序正当性。在此基础上,就侦查讯问活动,如何实现我国刑事诉讼“打击犯罪和保障人权”双重目的,还应当采取以下保障措施:第一,设立诉讼权利告知程序;第二,完善律师的帮助制度;第三,健全非法口供排除规则;第四,逐步推行“阳光讯问”方式;第五,羁押场所与侦查机关相分管;第六,恢复侦查、预审相分离机制。更多还原

【Abstract】 "Interrogation of criminal suspects" is an important investigation method and means of obtaining evidences and clues in the investigation stage of criminal procedures, it is also vital in revealing and proving crimes. It has been widely acknowledged by many countries. Due to major defects in the design of criminal procedures, as well as biases in law enforcement, attitudes of investigators and deficiencies of its guarding measures, the criminal procedures in China has experienced many serious problems. For example, because in lack of an established code of conduct, suspects are often restricted to have access to their informed rights; with regard to legal assistance, due to very limited involvement of solicitors in criminal procedures it is very hard for suspects to obtain the legal aids they need; In the area of controlling interrogation methods by force, the existing guidelines are too ambiguous without providing much details such as specification of the interval and the venue of interrogation, and its result validation; With regard to judicial control of interrogation processes, currently it is relying on internal regulations of the investigation organ and some surveillance laws set by the prosecution organ. The judicial control of interrogation procedures has been ineffective. There has also been a lack of relevant legislative regulations about the removal of illegal evidence. In practice there has been no warranty to the rights of "suspect voluntary statement".In connection with occurrences of extorting a confession by torture despite repeated prohibition in practice, the revision of＜＜Criminal Procedure Law? in China should set its foundation on the country’s unique situation, and actively use those positive experiences and lessons learned by other countries as a reference, in order to enforce surveillance and restriction to the rights of interrogation. A scientific approach should be taken in designing the steps in obtaining oral confession and its application during interrogation proceedings, so that the abuse of suspects by the interrogators can be prevented. Hence the establishment of a modern interrogation system in China should conform to the principles of using both public and secretive means in combination, interrogation by law, forbidding interrogation without suspect’s consent, extorting a confession by torture, or indiscriminating oral confessions. By regulating interrogation activities with established procedures, inappropriate use of national public power can be restricted, and justice in interrogation procedures can be embodied. On such basis, the following guarding measures can also be taken in order to realize the twofold goal of "combat crime and safeguard human rights" in criminal investigation procedures in China: (1) Establish litigant procedure rights informing procedures; (2) Improve legal assistance system; (3) Strengthen the rules about the removal of illegal oral confession;(4) Adopt the "Sunny Interrogation" methods;(5) Separate the place of custody from the investigation organs;(6) Restore the isolation mechanism between criminal preliminary hearing procedure and investigation.更多还原