【作者】 张莉；

【导师】 彭诚信；

【作者基本信息】 吉林大学 ， 法律， 2008， 硕士

【摘要】 由于诉讼价值观的差异,世界各国针对刑事程序性制裁规定了各具特色的法律制度。这些制度通过对非法证据排除规则和诉讼行为无效的规定,体现着各该国的刑事诉讼价值取向。我国虽确立了非法言词的证据排除规则,但由于缺乏对非法证据排除规则的全面理解和把握,使得非法言词证据排除规则难以发挥作用。而对于诉讼行为无效制度来说,我国在制度设计上仍是空白,更谈不上在实践中的操作问题了。可见,程序性制裁措施在我国的阙如。本文在结构上共分为四个主要部分:文章的第一部分对刑事程序性制裁进行分析。本人认为,制裁虽未必是所有法律规范的构成要素,但在刑事法领域,制裁是必不可少的构成要素。而程序性制裁是相对于实体性制裁而言的,从制裁方式上看,其主要是通过宣告程序违法者的证据、行为或裁决丧失法律效力的方式来发挥惩罚违法者的作用的制裁措施。在构成要件上,包括主观恶性和客观上的法律后果即程序性违法。第二部分对两大主要的程序性制裁措施从不同角度进行对比和分析。在本人看来,英美法系的非法证据排除规则和大陆法系的诉讼行为无效制度虽各有侧重,各有所长,但由于两大法系相互借鉴、相互融和,两者的界限已不再清晰。在文章的第三部分中,本人主要对建构我国的程序性制裁措施提出一些建议,对于非法证据排除规则,本人从非法证据入手,分析了非法言词证据、实物证据的可采性以及对“毒树之果”的处理问题。面对我国理论研究和司法实践的现状,本人提出设想,对两大法系的程序性制裁措施进行移植和本土化,使其真正在中国刑事领域发挥作用。文章的第四部分,本人对与程序性制裁措施相配套的制度加以探讨。首先必须建立一支独立的司法体系;其次,程序性制裁机制的建立;最后,建立司法审查制度,将一切侦查、追诉、审判等刑事诉讼行为均纳入司法审查的范围之中,只有这样,才能为犯罪嫌疑人、被告人的实体性权利和诉讼权利提供司法救济。程序性制裁措施才可能得以完善的建立,而业已建立的程序性制裁措施才会获得令人满意的实施效果。更多还原

【Abstract】 The procedural remedy measure of criminal is very important sanction in criminal procedural because of differences of the lawsuit value. Each country in the world has made all kinds of colors legal system, which shows the attitude of the value of lawsuit through the exclusive rule of the illegal evidence and the criminal court action of nullity. Although the illegal wordage being exclusive in our country we have not grasped the exclusive rule that makes it can not be truly affected. To the criminal court action of nullity, it has been blank in china, never saying in judicial practice. As lacking of profound theory and cognition of the criminal exocentric rules, Its been constructed. The writer thinks that it is the basement and premise which definite the attribute of jurisdiction and the administration attribution of right of investigating and prosecutorial power, also makes investigating prosecuting power, trial accepted judicial review, design the specific system at the same time. It has natural rights support in judicial system and has relief approach for the attainder especially for the criminal suspect and the accused.From the inscape of the regulations analyzing the necessity、essentiality and the procedural remedy measure of criminal. It will give the basement of a theory and the support of value. In the trend of the use for reference and amalgamation of the two families of laws, in the tide of the all-in-one try to construct the procedural remedy measure of criminal. This construction is not only in the technical regulations, but also on the value ground. Consummate the exclusive rule of the illegal evidence and design the system of the void act.It has three parts in the article, As follows:The first part is analyzing the procedural remedy measure of criminal. Law remedy is not all the inscapes of the regulations. But in the criminal law field, it is necessary. The procedural remedy measure of criminal is aimed at substantial remedy which through declaring void act of the evidence, behavior and verdict by offending proceeding, which are malignant in subjective and have the legal consequence in objective, which not only refers to the action of vioating proceeding, but also the public tort, even the constitutional tort. So as to make the procedural remedy measure has meanings and the profound theory.The second part is to construct the procedural remedy measure of criminal on the contrast of the two law systems. As for me the exclusive rule of illegal evidence of Anglo-American law system and criminal court action of nullity of continental law system. Each has his merits. As a matter of fact, on the base of the law theory and judicial practice, the two of them are already not very clear, but use for reference and amalgamation, both of them are in favor of relieving the human rights and realizing the procedural impartiality. In this part the author analyze the admissbility of the illegal evidence and the concept, standard cure sequence of the void act, hoping to avail to construction in our country, mainly in the values principle points and the scopes. Respect and assurance of human rights becoming international, criminal procedure has not been set up perfect procedural remedy measure. It is a pity for us that for a long time the police and the procuratorate and the court have the attitude of all-in-one benefits. They have been the tool of people’s democratic dictatorship and under the convoying of reform and opening. Actually, in the society ruled by law, I investigative power and prosecutorial power have the administration attribution. Under the leadership of the National People’s Congress, the police have jurisdiction, at least, it can restrict deprive the human fundamental rights, even though it has the ultimate vice. So, it’s necessary to transplant and inhabitant. From paying much attention to the substance to ignoring procedure, from pursuing crime to ignoring assurance of human rights to have its independent value and dignity not just an appendage and a tool for criminal law.The third discusses forming a complete set of the procedural remedy measure of criminal. Judicial review is imported for the jurisdiction being judging character and the investigation and prosecutorial power having administration attribution. Procedural judging mechanism and evidence disclosure have been constituted. Only in this way can have satisfying the effect of implement.It can’t be solve all the problems, but if it hasn’t constructed, it should come forth more and more questions. We can’t be holding aloof and be all at once. Things are connected, the procedural remedy measure of criminal is not an exception. We’ll absorb the rational factor. Someone once said:“the real danger of judicatory lies in the coward boycotting to the rational reform and in the dogged persisting of outmoded conventions.”更多还原