【作者】 梁佳；

【导师】 张文显；

【作者基本信息】 吉林大学 ， 法学理论， 2008， 硕士

【副题名】以被害人的权利保护为视角

【摘要】 刑事公诉案件普通程序结构又称为刑事诉讼权力与权利结构,是指刑事诉讼中各权力与权利之间相互制衡与联系的架构。刑事诉讼中权力与权利的结构受人们法律观念、法律理念、法律思想的影响。最终,还是受到社会经济政治大环境的影响。反过来,一旦权力与权利结构形成又会影响人们的法律思维、法律行为。所以,权力与权利结构的选择与构建应当慎重。本文对我国现行刑事诉讼中存在的若干问题进行思考,认为在现代刑事诉讼的“三角结构”中,由于忽视了被害人的特殊作用,从而使得诉讼模式中各主体的法律关系难以有效协调,从程序上和结果上都无以对被害人的利益进行全面保护。出于对被害人利益的保护,我们必须对我国目前的“三角结构”和“线性结构”作一些修正,具体来讲就是在审判前的取保候审等羁押变更程序、检察院的决定起诉和不起诉程序、法院的定罪与量刑程序,以及审判后的刑罚执行变更程序中引入被害人的参与权。完善刑事诉讼中权力与权利结构,对于科学合理地配置当事人在诉讼中的具体权利义务,完善对抗制诉讼机制,开拓刑事诉讼法学的研究视野等都具有重要理论和实践意义。更多还原

【Abstract】 The judicial structure in criminal cases is represented as restriction and connection between power and human rights. The structure is affected by people’s legal conception and legal theories, and ultimately is affected by the circumstances of society, economy and politics. On the contrary, as long as the structure between power and rights is formed, it surely will influence people’s legal conception and their behaviors. Therefore, the selection and the construction of the structure between power and rights should be very considered prudently. Via the analysis of some problems in our current criminal cases, this dissertation believes that the newly formed judicial structure can be displayed like this: judicial independence, confrontment between procurators and defendants, the essence of jurisdiction is the power of determination. Both the emphasis on equity between procurators and defendants and the acceptance of the balance between jurisdiction and parties’ rights in proceedings will enable the triangle structure of criminal cases more apparent, in addition to the definite boundary between jurisdiction and human rights, which guarantees the independence of judges to supply an system pledge for the realization of justice in criminal cases. To improve the criminal judicial structure between power and rights is of great significance for distribution of parties’ rights reasonably, for progress on the counter-party judicial system and for broader view in the investigation of criminal law.Specifically, The whole dissertation consists of six parts, including the introduction and the conclusion.In the introduction, the thesis, approach and framework are established. In the introduction, the thesis, approach and framework are established. First, I’ll illustrate the embarrassing position of victim in our current procedural structure. Second, you’ll understand the reason and measures of the problems that have been said. At last, I’ll explain the protection of victim combined with the theory about the balance of interests.In the second part, the author goes into particulars on the embarrassing situation of the victims in criminal judicial structure, who can not act like a party as a party in criminal cases. Their position are just between criminal suspects/defendants and witness, having more rights than witness, but less rights than suspects or defendants. This is displayed in two sides: one is the devoid of the victims’ rights of action, which is reflected on the stages of accreditation, review and prosecution and trial. The reasons are as follows: firstly, the right of prosecution is held by people’s procuratorate, who represent the interests of nation and society, which may differ from the interests of the victims; secondly, the history of socialism legal theories insists that individual interests should submit to social interests, however, law should not only pay attention to social interests or individual interests, but find the best coupling point between them; thirdly, procurators can not represent the interests of victims completely; fourthly, the position of people’s procuratorate in the criminal law may carry weight. On the other side, the embarrassing situation of victims also behaves as the inequitable positions of the procurators and the defendants, which is induced by the lined structure between power and human rights in criminal cases. In addition, there are still some other reasons which count a lot, such as the restricts for the suspects and defendants getting help from lawyers, the absence of effective measures for enhancing the resistance ability of defendants.The third part is used to demonstrate the reason for the problem argued in the second part. The embarrassing situation of the victim in criminal judicial structure of China is brought about by the present judicial structure of our country which is characterized by the "triangle structure" and the "linear structure". The advantages of "triangle structure" are as follows. First of all, it can help to separate the function of prosecution from that of decision, substitute public prosecution for private prosecution, and establish the principle of "no trial without complaint". Secondly, it can help the judges to use their judicial jurisdiction independently and ensure the independence of the judicial justice. Thirdly, it can help the defendant and his defender to take an active role in the procedure and protect the right of defense of the defendant. Finally, it can help to set the principle of public verdict and the doctrine of discetionale evaluation of evidence. However, such a structure neglects the special role of the victims, so it is not able to harmonize the relations between the objects of the procedure. As a result, it cannot protect the interests of the victim completely. Concretely, in the procedure of investigation and the procedure for commencement of action before the judicial justice, the victims are not able to participate in an effective way. In the stage of judicial justice, the victims are regarded as independent objects to some extent. However, in the execution procedure, the victims don’t have any right of participation at all. What’s more, the procuratorate and the prosecutors have a twofold role in that they not only have the right to prosecute, but also have the power to inspect as well.The forth part can be regarded as a countermeasure. First of all, the author analyzes the common way the other countries use to protect the right of the victims, which make sure the victims can take part in the procedure actively in some important stages of the procedure. And the stages are: the procedure of hearing for bail, the procedure of plea bargaining, the procedure of convict by the jury and sentence by the judge, and the procedure of commutation and parole in the execution. In these stages, the victim, the prosecutor, the defendant and the judge restrict each other and this help the victims to participate in the procedure in a great extent. Then the author demonstrates briefly what China has been doing to protect the rights of the victim: establishing the adversary procedure brought from the common law system and promoting the position of the victim to one part of the procedure. In a word, the victims are allowed to take part in the procedure of posting a bail and awaiting trial with stricted liberty of moving, the procedure of prosecution of the procuratorate, the procedure of judicial justice of the court and the procedure of execution to a great extent.The fifth part is on the whole about the analysis on the balance of rights. There are three kinds of interests in modern criminal law system: interests of nation, interests of victims and interests of defendants. The author starts from the embodiment of the above interests in judicial process and judicial structure, and then illuminates that the three kinds of interests are destined to conflict because criminal cases are carried through by multi-parties. These conflicts are brought forward by the contradiction between judicial process and verdicts, the contradiction between nation power and human rights, the contradiction between the pursuit of truth and the fixed time and space in the judicial procedure, also the contradiction between justice and efficiency. At the same time, the author defines some important issues in estimation and selection of interests: firstly, estimation and selection of interests can only be put up in lawmaking, but not in judicial process; secondly, the selection of interests in specific criminal case is often displayed as sufficient protection of one kind of interests and complete abandon of another; thirdly, the estimation of interests in criminal cases can not be simply defined as traditional nation interests, collective interests and individual interests, which may educe an improper conclusion that individual interests submit to collective interests and collective interests submit to nation interests. Finally, on the basis of the theory of balance of interests, the author draws the conclusion that justice in proceeding can only been achieved by the rational balance of the interests of parties.The last part emphasize on the importance of the protection of the victim’s right of participation. As the present triangle structure neglects the special role of the victims, so it is not able to harmonize the relations between the objects of the procedure and protect the interests of the victim completely, it is necessary to modify the triangle structure and the linear structure. Concretely speaking, we have to ensure the right of participation of the victim in the procedure of posting a bail and awaiting trial with stricted liberty of moving, the procedure of prosecution of the procuratorate, the procedure of judicial justice of the court and the procedure of execution. So it is of great importance to point out the obstacles to achieve such a purpose. To begin with, the pre-judgement procedure is still an administrative procedure and the judicial review hasn’t established yet. Secondly, the procedure of convict and sentence haven’t been separated yet and the jury haven’t play their due part. Thirdly, the power of the judges is too strong and their judgements tend to be administrative. To make things worth, the prosecutors have a twofold procedural function, which enhances the power of their own. On the other hand, the present procedural system hasn’t done much to the protection of the rights of the defendant, so the protection of the rights of the victim tends to do harm to the rights of the defendant. Finally, the lack of the sense of personal rights also leads to the neglect of the rights of the victim. To sum up, only do we solve these problems, can we protect the right of victims as a matter of fact.更多还原