论我国刑事和解制度的构建

【作者】 谭覃；

【导师】 张纪寒；

【作者基本信息】 中南大学 ， 刑法学， 2008， 硕士

【摘要】 刑事和解作为一种新型的解决刑事纠纷的模式从20世纪70年代以来,在全球范围内迅猛发展,刑事和解制度的构建亟需成为我国法学界的研究课题。本文一共分为五个部分。第一部分为引言,第二部分为刑事和解的概念与比较。该部分首先探讨刑事和解的定义,其次,概括出刑事和解的三个特征,即自主性、互利性和缓和性。最后,将刑事和解概念与私了、调解、辩诉交易以及恢复性司法进行了辨析。第三部分为刑事和解的实践概况与利弊评价。该部分首先探讨刑事和解的国外实践概况,介绍美国、英国、日本、德国刑事和解的实践概况,和这些国家刑事和解制度的发源、发展以及相关立法文件。然后,对我国大陆刑事和解的实践概况作了简要描述,并对刑事和解的利弊分别作以提炼。刑事和解之“利”是:一、特殊预防效果显著。二、能解决被害人之需;三、能为犯罪人架设回归社会中的桥;四、能节约司法成本。刑事和解的弊端主要有:一、轻视犯罪嫌疑人的权利保障;二、难以真正矫正主观恶性较深的犯罪人;三、刑事和解对弱势群体不利;四、破坏罪责刑相适应原则;五、减小了公民的自由度。第四部分为我国刑事和解制度构建的必要性和可行性分析。刑事和解制度在我国构建的必要性主要体现在:一、刑事和解体现了和谐司法理念;二、刑事和解体现了浓厚的人文精神;三、刑事和解能够提高司法效率;四、刑事和解有利于被害人利益保障。刑事和解制度在我国构建的可行性主要体现在:其一,我国有刑事和解制度构建的文化基础。其二,刑事和解制度的构建不会引发其他问题。第五部分为我国刑事和解制度构建的具体构想。刑事和解制度的适用前提:其一,主观上自愿;其二,客观上认罪;其三,积极赔偿。再次,在介绍了四种主要的国外刑事和解模式的基础上,根据我国具体国情,确定我国刑事和解模式。第四,就有关刑事和解的中间调解人的遴选、培训和考核问题进行构想。最后对刑事和解的程序和效力提出构想。更多还原

【Abstract】 Criminal reconciliation has been widely spread in the world as a new type of criminal conflicts-solved mode since 20century 70ties, Which is in much need into the studying subject in the legal circuit in our country. This article, is divided into five sections.Part one is the introduction. Part two is the concept of criminal reconciliation and comparison. Firstly, discussing the definition of criminal reconciliation, Finally, through contrasting the defined concept of criminal reconciliation against some similar concepts, such as private settlement, mediation, plea bargaining and restorative justice, to analysis the sameness and difference between them.Part three is the profile of criminal reconciliation practice and the evaluation of its advantages and disadvantages. First, discussing the profile of the of criminal reconciliation practice. Starting with the criminal reconciliation practice overview of the United States, the United Kingdom, Japan and Germany, to introduce the origin, development and related legislative documents of the criminal reconciliation system in these countries. And then to describe the profile of the criminal reconciliation practice in China briefly. The advantages of Criminal reconciliation are as follow: (1) The effect of special prevention is better. (2) Meeting the victim’s requirement much more; (3) can built the gold bridge for offender better; (4) can save the justice cost more; (5) more justice. But many researchers believe that there are also many disadvantages of the criminal reconciliation, mainly as follows: (1) ignoring the protection of suspects’ rights; (2) the efficiency is poor; (3) the criminal reconciliation went against vulnerable groups; (4) undermining the principle of consistency between crime and punishment; (5) resulting in widespread damage.Part four is narration of the reasons of construction of criminal reconciliation in China. The author analyzes mainly from necessity and feasibility.Firstly, the necessity mainly embodies as such: (a) criminal reconciliation reveals the idea of harmonious justice, and which becomes the necessity for the development of harmonious society; (b) criminal reconciliation reveals the thick humanistic spirit, which is the necessity of implement if the humanistic policy; (c)criminal reconciliation can increase the efficiency of judicature, which is the necessity of development of the economized society; (d) criminal is advantageous to the protection of the victims, which keeps pace with the international reform of justice.Secondly, the feasibility mainly embodies as such: one is the foundation of the construction in China, such as the deep traditional culture foundation, criminal policy foundation and social practice foundation; the other is systematical construction of criminal reconciliation in China has no side-effects, which has no contradictory conflicts with the principles of criminal law, no counter on principle of a legally prescribed punishment for a specified crime and principle of legal equality. Construction in China has no conflicts with the power of punishment. In addition, the care that construction in China will increase the judiciary corruption has no any foundation.Part five is the detailed device of construction in China. The prerequisites of application of criminal reconciliation includes: (1) of one’s own accord; (2) admittance one’s guilt in objective; (3) active restitution. Secondly, introducing some typical modes such as family group conference mode, police-led cautioning mode, community group conference, circle sentencing and community responsibility mode. Then according to the current situation in Chinese Mainland, and the different stages arranged by the procedural law, choose the proper modes.And then, the author concepts the mediator in criminal reconciliation. The choice, train and check of the mediator should make the reference of the choice, train and check of juror.Lastly, the author concepts the procedure and validity of criminal reconciliation.更多还原