【作者】 马洪君；

【导师】 李韧夫；

【作者基本信息】 吉林大学 ， 法律， 2009， 硕士

【摘要】 国防和军事历来与战争紧密相联,对群众生活安危、民族兴衰乃至国家存亡都有重大影响。在现代法制国家,军事刑事诉讼成为国家刑事诉讼制度中不可缺少的组成部分,应当与国家的民主与法制建设发展水平相适应。因此,战时军事刑事诉讼制度研究成为军事法学术界当前和今后一段时期的重要课题。然而,由于多方面的原因,与军事刑事诉讼有关的法律规范至今尚不健全,战时军事刑事诉讼立法还是空白,造成我国的军事刑事诉讼规范体系长期落后于国家刑事诉讼制度、国防法制建设和国际刑事诉讼改革的发展趋势。为此,本文试从分析和研究战时军事刑事诉讼本身具有的特殊性入手,剖析相关司法理念、基本原则和价值取向,坚持理论与实践相结合、国外经验与我国实际相结合,在比较分析中对战时军事刑事诉讼中的一些主要问题,如概念、原则、管辖和战时诉讼程序等进行探讨,以期探求我国战时军事刑事诉讼的发展脉络和内在规律,并借鉴发达国家的做法,进一步构架了战时军事司法管辖制度、战时军事侦查制度、战时军事检察制度、战时军事审判制度和战时刑罚的执行等制度,以期为充实和完善具有中国特色的战时军事刑事诉讼法律制度服务。更多还原

【Abstract】 Theoretical researches of military law is the important aspect of national defense and army building, which plays vital roles under the general policy of running the armed forces in accordance with the law and with high standards. People’s army not only requires strong sense of crisis and sense of mission, but also puts the philosophy of democratic rule by law and strengthening the army by operation of law into practice and continuously strengthens the democratic and legal building of army, especially paying attention to the theoretical researches and construction of military law in wartime. Based on the above, researches on the military law in wartime including the system of military criminal procedure in wartime become the important task in the academic circles of military law at present and in the near future.From the angle of theoretical research and practical requirement, the reasons that researches on the system of military criminal procedure in wartime in this country are serious lagging are analyzed in the paper. Elaborate the manifestations and reasons for the lagging researches on the system of military criminal procedure in wartime in this country: firstly, restricted by the overall situation of legal research, researches on science of military law in this country have not formed proper scale. Secondly, the inadequate researches on military criminal procedure in wartime and the underemphasis of legislative practice lead to that the legislation of military criminal procedure in wartime seriously lags behind. Thirdly, influenced by historical tradition and practical national conditions and restricted by the unified idea to pursue to law, the supporting construction of military criminal procedure in wartime can’t meet the requirements of reality.Starting from analyzing and researching on the particularity owned by the military criminal procedure in wartime itself, drawing lessons from the results of military criminal procedure theoretical research in wartime at home and abroad and making comparison, the meaning of wartime is defined in the paper through combining the national and military situations in this country, that is, the unforeseen event appeared in a whole country or part of the country. At the same time, it is pointed out that the meaning of wartime defined by the criminal law in this country has defects: only stipulate the beginning of wartime and don’t stipulate the ending of wartime, which will lead to the uncertainty of the ending of wartime and wartime application of law.Through taking apart the judicial philosophy of military criminal procedure in wartime which pays more attention to safety value and deeply analyzing the value orientation of military criminal procedure in wartime, arrive at a conclusion: from state common criminal procedure to military criminal procedure in peacetime, than to military criminal procedure in wartime, the value composition implied in it is the dynamic change process that safety value is changed from weak to strong and freedom value is changed from strong to weak. In wartime state, safety value should trend towards leading position and freedom value should be in subordinate position. Based on the above, through analyzing the characteristics of compatibility of the safety value and freedom value of military criminal procedure in wartime, it is obtained that what the military criminal procedure in wartime pursued is only the optimum harmony of safety value and freedom value on the whole but not the separation of safety and freedom.During comparative analysis and overall comparison, analyze the fundamental principle of military criminal procedure in peacetime proposed by some scholars, propose the contents of fundamental principle of military criminal procedure in wartime: principle of protecting military efficiency, principle of close restraint, principle of rapidness and simplicity and principle of severity and leniency. Expound on the fundamental principle of military criminal procedure in wartime as well as the value of each military procedure in wartime, because each value of judicial proceeding plays a decisive role on restricting the establishment of fundamental principle.Based on the above, insisting on the combination of theory and practice as well as the combination of drawing lessons from external experiences and basing upon the actual situation in this country, deeply investigate the military judicial control in wartime and the military criminal procedure in wartime, and frame the following systems, such as the system of wartime military judicial control, the system of wartime military investigation, wartime military procuratorial system, the system of wartime martial justice, the system of wartime execution of punishment etc., so as to enriching and completing the service of legal system of military criminal procedure in wartime with Chinese characteristics.On the aspect of military judicial control in wartime, adjusting the scope of wartime general jurisdiction is proposed in the paper, which including (1) enlarge the scope of nationality jurisdiction, that is, in the condition of war, bring any crimes carried out by military staff and prisoners of war, the crimes of local personnel temporarily collected for providing services and guarantees for army as well as other crimes which seriously destroy the relation of military laws carried out by civilian personnel into the scope of military judicial control in wartime. (2) Strictly carry out regional jurisdiction. In order to prevent the applicable scope of system of military criminal procedure in wartime from enlarging so as to destroy state judicial system and constitutional order, except for taking place the nationwide war or world war, every country in the world limits the applicable scope of military judicial procedure in wartime to war area, therefore, it is very necessary for our country to define wartime regional jurisdiction. (3) Restrict jurisdiction of legal case. There are two kinds of jurisdiction of legal case for military criminal procedure in wartime: one is the case about the crimes of soldiers violating military duties and crimes of impairing the interests of national defense, the other is ordinary criminal case. At the same time, in order to save the resources of wartime military justice, the scope of accepting and hearing of a case should also be restricted. Generally, cases involving in military and civil matters which have little influence on military benefits as well as the private prosecuting cases which have no direct connection with military action or have little harmfulness are not administered by the military judicial organs in wartime.On the aspect of the system of military criminal investigation in wartime, contrasting the difficult problems probably encountered by the current system of military criminal investigation in wartime application, propose solutions: firstly, establish wartime criminal investigation center. Transfer the manning of security body of different units above the army of war zone, and carry out double leadership and responsibility system. Secondly, military commanders are given certain wartime power of investigation with respect. In order to adapt to battlefield emergency under the condition of informationization, military commanders are given certain criminal investigation and control power through legal rule, which mainly include petty criminal offence and military offence violated by their subordinates. At the same time, military commanders have the rights to adopt temporary enforcement measures, but effective inspecting and supervising measures should be adopted so as to prevent the destroying to wartime military justice because of the unlimited expanding of their rights. Thirdly, complete wartime enforcement measures. In order to guarantee the timeliness of military criminal procedure in wartime, the procedure of wartime enforcement measures should be simplified with propriety: one is to allow adopting urgent enforcement measures. Under emergent situations, judicial authorities can adopt the enforcement measures, such as detention, arrest etc., without legal proceedings, and make up relevant judicial proceeding afterwards. The other is to allow adopting scene investigating measures. When the situation is urgent, in connection with the current criminal suspects of battlefield, investigators can directly adopt the following investigation measures, interrogation, search, inquisition, inspection etc., and make corresponding records on spot, make up judicial proceeding afterwards. At the same time, for drawing lessons from foreign successful experiences and measures, it also should make clear: two kinds of enforcement measures: the bail pending trial with restricted liberty of moving and supervision of residence, can’t be applied to wartime criminal suspect and accused person, because there is no condition to adopt the two kinds of enforcement measures under the battlefield environment.On the aspect of wartime military criminal procuratorial system, in order to adapt to the requirements of military criminal procedure in wartime, through drawing lessons from foreign experiences, the following aspects are proposed: firstly, flexibly set up military procuratorial organ. Under the special situation in wartime, military prosecutors are transferred by PLA military procuratorate to form special military procuratorial committee and accredited to the military court of combat zone and battlefield military court to exercise right of complaint and carry out judicial supervision through combining the reality of battlefield; in addition, military procuratorial commissioners can be accredited to the units at the brigade or regimental level of each combat troop, coordinating and supervising security department to carry out the work. Secondly, simplify mode to review and make a decision of prosecution. Establish wartime special procedure to review and make a decision of prosecution, simplify investigation formalities and cut down the time limit to review and make a decision of prosecution. Except for the cases which must be reviewed and made a decision of prosecution according to law by military procuratorate, battlefield military commanders should be given the rights to participate in reviewing and making a decision of prosecution conditionally, and participate in deciding issues related to review and make a decision of prosecution. Thirdly, flexibly bring in an indictment. Battlefield military commanders should be given certain rights of judicial urgent disposal, the decision to bring in an indictment made by procuratorial organ generally should listen to the opinion of military commanders of the army of incidence of criminal offenses.On the aspect of the system of wartime martial criminal justice, firstly, establish wartime institution of martial justice. In connection with the characteristics of the high degree of strong flexibility and unbalanced incidence of criminal offenses of armies involved, army’s discipline and wartime order must be maintained in rapid and flexible judicial mode, therefore, the configuration mode of military court in peacetime should be reformed and the martial justice institution of war area in wartime should be built: one is to set up special military court of war area with responsibility for hearing some major cases of armies in the region within the jurisdiction and war area; the other is to set up wartime military commission in division participating in a war and combat troop of brigade level, specifically hearing the cases of responsible armies and within war area and accepting the wartime cases of criminal offence which are relatively slight, serious crime cases are transferred to military court of war area to hear. Secondly, optimize wartime judicial procedure. First is to reduce the period of litigation. Second is to simplify judicial proceeding. Relax the applicable condition of simple programmed cases and extend the scope of trying a case by a single military judge. Third is to simplify the formalities to handle a case. Under the condition that ensures the basic procedural rights of criminal suspect and accused person, restrict to propose the scope of extempore application; persons involved can’t apply to reconsideration again after withdrawal by petition is out of court etc. Thirdly, carry out officers and soldiers to attend judgment. Fourthly, limit wartime appeal. For this reason, strengthen the authority of the arbitral award of wartime military court. However, after condition of war ends, the accused person should be allowed to file a complaint or submit counterappeal to procuratorial organ.On the aspect of wartime execution of punishment, in order to ensure that legally effective judgment is carried out, the executive mode of wartime punishment should be flexible. First is to establish and complete wartime commutation and pardon institution as well as wartime system of probationary suspension. Broaden the conditions and applicable scope of wartime commutation and pardon, and extend the applicable conditions and scope of the case of redeeming by good service etc. second is to properly expand wartime executive subject. Establish disciplined service responsible for the execution of punishment for petty criminals. The legally effective judgment which can’t be executed without the conditions under the battlefield environment should be transferred to the rear to carry out. In the paper, propose the opinions such as give full play to the function of military lawyer to protect servicemen’s rights and interests, restrict the discretion of commander, etc., further establish the value orientation of wartime military justice, ensure the right value of serviceman submit to protect military order value, and its final foothold lies in creating a harmonious, stable, coordinated and ordered external environment to protect the fundamental rights of all the people including servicemen and providing reliable judicial guarantee for armies to complete diversified military missions and cope with various kinds of safety threat.更多还原