【作者】 杨俊；

【导师】 李晓明；

【作者基本信息】 苏州大学 ， 宪法学与行政法学， 2010， 博士

【摘要】 本文立足于宪政与刑事法治这两大宏观命题展开讨论,并重在揭示两者之间有机互动的内在关系。宪政意味着必须通过限制权力来保障人权,因此,人权保障就是宪政最高的、核心的价值目标。而这一价值目标必须落实和体现于部门法的制度构建与实际运行之中,其中最为重要的是刑事法。真正意义上的刑事法治亦是通过限制刑罚权的滥用来实现人权保障的,这无疑是和宪政的旨趣殊途同归的。由此可见,宪政与刑事法治在人权保障方面形成了共同的契合。笔者也正是希望通过人权保障这一契合点来深入揭示宪政与刑事法治的关系。为此,本文通过理论论证与实证研究相结合,并充分运用跨学科交叉的研究方法,对宪政、法治、刑事法治以及人权保障等诸多概念范畴进行系统深入的理解和剖析。由此得出结论,宪政是实现刑事法治的根基,宪政的价值理念必须影响和渗透到刑事法领域之中。正是在宪政精神的指引下,刑事法领域内才能确立起比较完备的人权保障机制。同时,宪政的价值蕴涵也正是通过刑事法的完善而得以体现的。本文共分四章:在导论部分,首先提出了问题,指出了从人权保障的视角探讨宪政与刑事法治相互关系的重要性。并概述了选题的理论意义、实践意义和研究现状,以及研究的范围、思路和方法,为本文的写作奠定了可行性的基础。在第一章中,主要是对宪法与宪政、法治与刑事法治、人权与人权保障等几组相关基本范畴的内涵和外延进行探讨。首先是宪法与宪政。宪法是国家的根本法,又是公民权利的保障书,更是民主事实的制度化和法律化。当然,有了宪法并不一定能够实现宪政。宪政包含着限制权力和保障人权的内容,其中,民主、法治、人权乃是宪政的三个基本要素。那么,一部符合宪政标准的宪法应该是能够体现上述基本要素的良宪。其次是法治与刑事法治。法治有形式法治论与实质法治论之分,形式法治论是在反对人治的基础上形成的,它强调的是法律的至高无上性,但形式法治论仅是满足了法治的第一层内涵,并不代表法治的全部。真正的法治应当是承载着特定价值内容的实质法治论。实质法治论认为法治除了意味着“法律之治”外,更重要的应当是一种“良法之治”。对于“良法”,主要表现为正义之法、权利之法和进步之法。刑事法治是法治的下位概念,其建立和发展离不开法治原则的指导,同时刑事法治必然要体现出法治所蕴涵的公平正义、保障人权和文明进步等实质内容。因此,刑事法治就意味着刑事法领域内的“良法之治”,具体而言,刑事法治的内涵包括罪刑法定、罪刑均衡、刑法人道、刑法谦抑等诸多内容。最后是人权与人权保障。通过对人权的含义和内容进行阐述可以得出结论,本文所言的人权主要是指法定权利范畴之下的公民的基本权利。同时,人权不仅要被确认,更重要的是要受到保障。因此,从法定权利向实有权利的转化,确立人权保障机制是非常重要的。其中,尤其重要的是确立人权的法律保障机制。第二章着重论证宪政作为刑事法治根基的合理性。在本章中,首先辨析了宪政与法治的内在关系。宪政与法治有着天然的联系,首先,宪政所强调的“宪法至上”的原则和理念要得以实现,离不开法治。其次,宪政所要求的限制政治权力的内涵要得以体现,离不开法治。再次,宪政保障人权的价值目标要得以实现,离不开法治。而刑事法治又是法治的下位概念,那么刑事法治应当承载法治所要求的价值内容,即限制权力和保障人权。在刑事法领域,限制权力主要是指限制刑罚权,保障人权主要是保障宪法规定的公民基本权利,而限制刑罚权正是为保障公民基本权利服务的。由此可见,宪政与刑事法治在内在关系上也是高度契合的,而其中最重要的契合点就在于人权保障。但深入解读宪政与刑事法治内在关系并不应当仅仅停留于人权保障这一契合点上,而是需要在此基础上进一步予以延伸,从而得出宪政是刑事法治之根基的结论。为了论证这一结论的合理性,有必要对古今中外宪政和刑事法治建立和发展的历史进程进行梳理和比较,从中总结出经验和教训,同时对照刑事法治的相关内容,揭示其背后的宪政意义。第三章主要探讨人权保障在刑事法治中的定位以及刑事法治中所确立的人权保障机制的具体内容。首先人权保障应当作为刑事法治的核心价值而存在,在肯定这一前提之后,需要进一步明确刑事法治中究竟应当确立怎样的人权保障机制。通过前述内容的阐述,以及结合对相关国家立宪内容的考察,不妨得出结论,刑事法治中的人权保障必须受到宪政的指引。因此,刑事法治中确立的人权保障机制应当重在保障宪法所规定的公民基本权利,具体包括公民的生命权、自由权、财产权以及诉讼权利等,可以说,刑事法对这些权利的保障应当是最强有力的。第四章是本文最重要的落脚点,即探讨如何具体实现宪政下的刑事法治。本章首先通过刑事个案分析的方法揭示了目前我国刑事法领域内人权保障的现实状况,并由此指出了我国刑事法治难以真正建立和发展的症结所在。针对存在的问题,提出宪法指导与适用的必要性和可行性,并在此基础上对我国如何确立比较完善的人权保障机制进而实现刑事法治尝试进行精良的制度设计。首先是刑事法的合宪性问题,具体包括刑事立法的合宪性审查和刑事司法解释的合宪性审视两个方面。就刑事立法的合宪性审查而言,重在探讨审查的必要性、审查的主体以及审查的具体内容等几方面问题。就刑事司法解释的合宪性审视而言,重在探讨合宪性解释方法的重要性、刑事司法解释立法化倾向的纠正以及刑事司法解释必须遵循罪刑法定原则等几方面问题。其次是关于刑罚制度的调整,一是从保障生命权的角度探讨对死刑的控制问题,具体包括死刑的立法控制和司法控制。二是从实现刑罚轻缓化的角度探讨我国刑罚结构的调整问题,具体而言,是从重刑结构逐步向轻刑结构转化,从而保障犯罪人的人权。再次是关于刑事诉讼法领域内的人权保障问题,主要对如何完善正当程序原则、无罪推定原则、非法证据排除规则以及沉默权制度等内容进行了详尽的探讨。最后是关于被害人权利保护的问题。主要是围绕着刑事和解中刑事被害人的权利保护和刑事被害人国家补偿制度的构建两大方面展开讨论,并提出相应的建言。更多还原

【Abstract】 This article has a discussion based on constitutionalism and rule by criminal law of these two macro-propositions. Constitutionalism means it’s necessary that protecting human rights through restrictions on the power,therefore,the proteceion of human rights is the highest and central value target in constitutionalism.This value target must be implemented and embodied in the system construction and the actual operation of department law ,and criminal law is the most important one among department law. The true sense of rule by criminal law is also a process by restricting on the penalty power’s abuse to come to achieve the protection of human rights,which is destiny bond to constitutionalism undoubtedly. Thus,there are common fit in the protection of human rights between constitutionalism and rule by criminal law.I hope to further revealed the relationship between constitutionalism and rule by criminal law through the common fit of the proteceion of human rights.Therefore,this article will combine the theoretical arguments and empirical study ,and apply cross-discipline research methods fully to systematic in-depth understanding and analysis about constitutionalism , rule of law, rule by criminal law , the proteceion of human rights and so on. There is a conclusion that the implementation of rule by criminal law is based on constitutionalism ,and the values of constitutionalism should be affected and infiltrated to criminal law. Under the guidance of constitutionalism , it’s feasible that established the human rights protection mechanism within the field of criminal law. At the same time, the value implication of constitutionalism could be embodied through the perfection of criminal law.This article is divided into four chapters:In the introduction, first, questions were raised firstly,which noted the importantance of studying the relationship between constitutionalism and rule by criminal law from the perspective of the protection of human rights.In addition,the introduction has an overview of the theoretical topics of significance, practical significance and situation of the study,and scope, ideas and methods of the study,these laid the basis for the feasibility of the writing of this article.In the first chapter, mainly for constitution and constitutionalism, rule of law and rule by criminal law, human rights and protection of human rights of several groups of related connotation and extension of the basic areas to explore.The first is constitution and constitutionalism. Constitution is the country’s fundamental law, but also the protection of human rights books, but also the institutionalization of democracy and the law of the facts. Of course, with the constitution does not necessarily able to achieve constitutionalism.Constitutionalism contains restriction on the constitutional rights and protection of human rights content, including, democracy, rule of law, human rights is the three basic elements of constitutionalism. Then, in line with the constitutional standard of a constitution should be able to reflect the above basic elements of good constitution. Followed by the rule of law and rule by criminal law. There are the form the rule of law and the substance of the rule of law on the rule of law on the points, the form of the rule of law against the rule of man theory is formed on the basis, which emphasized the supremacy of the law but the form of the rule of law on the rule of law is only to satisfy the first layer of meaning, and does not represent all of the rule of law.The genuine rule of law should be the carrying value of the contents of a particular theory of the substance of the rule of law. On the substance of the rule of law means that the rule of law means " rule of law ", but more importantly, should be a " rule of good law." For the "good law", mainly for justice of the law, rights of the law and the advancement of the law. Thus, rule by criminal law means that the field of criminal law’s "rule of good law", specifically, the meanings of rule by criminal law should including a legally prescribed punishment for a specified crime, the balance between crime and punishment, the humanitarian issues in criminal law, restraining principle of criminal law and many other contents. Finally, human rights and protection of human rights. Through the meaning and content of human rights set out can be concluded, this article talks about the human rights area mainly refers to the statutory right under the fundamental rights of citizens. At the same time, human rights not only to be recognized, but more importantly is to be protected. Therefore, from a legal right to have the right to real transformation and establish human rights protection mechanisms are very important. Of these, particular importance is to establish mechanisms for legal protection of human rights.The second chapter argument focused on the rationality about constitutionalism as the foundation of rule by criminal law.In the chapter, first Analysis of an inherent relationship between constitutionalism and rule of law. Constitutionalism and the rule of law has a natural connection, first of all, constitutional that the "supremacy of the Constitution," the principles and concepts to be realized, can not do without rule of law. Second, the constitutional limits required by the connotation of political power to be fully realized, is inseparable from rule of law. Again, the value of the constitutional protection of human rights goals to be realized, can not do without rule of law. Rule by criminal law is the concept of rule of law under the bit, then rule by criminal law should be carrying the value of the content required by rule of law, that restriction on the constitutional rights and protection of human rights. In the field of criminal law to restrict the power penalty mainly refers to restrictions on the right to protection of human rights is the constitutional protection of fundamental rights of citizens, and to restrict the right of punishment is to protect the fundamental rights of citizens services. Thus, constitutionalism and rule by criminal law is also in the relationship, including a high degree of fit, and fit one of the most important point is that human rights protection. However, insight into the inherent relationship between the constitutionalism and rule by criminal law does not stay in the protection of human rights should only be fit to this point, but needs to be further extended on this basis to arrive at the conclusion that the foundation of rule by criminal law is constitutionalism. In order to demonstrate the reasonableness of this conclusion, it is necessary constitutionalism and rule by criminal law for all times and to establish and develop the historic process of combing and compare, from which sum up experiences and lessons, while the control rule by criminal law related to the content, revealing the meaning behind constitutionalism .The third chapter consists mainly of human rights protection in rule by criminal law of the location and the specific content of human rights protection mechanism established in rule by criminal law. First, protection of human rights should be regarded as a core value of rule by criminal law exists, in the affirmative on this premise, the need to further clarify what rule by criminal law should be established in what kind of human rights protection mechanism.Through the elaboration of the foregoing, as well as constitutional elements combined with examination of relevant countries, it may be concluded that the protection of human rights in rule by criminal law must be subject to constitutional guidelines. Therefore, the protection of human rights mechanisms in rule by criminal law should be established lies in the constitutional protection of fundamental rights of citizens, specifically including the right of citizens to life, liberty, property rights and litigation can be said of the criminal law on the protection of these rights should be the most powerful.The fourth chapter is the most important ultimate goal of this article, namely, on how to achieve rule by criminal law under constitutionalism. This chapter begins by way of criminal case analysis revealed China’s current human rights protection within the field of criminal law, the reality of the situation, and thus points out the difficulty of our rule by criminal law to establish and develop the real crux of the matter. Deal with the problems, a constitutional guidance and application of the necessity and feasibility, and on this basis, how to establish a relatively complete China’s human rights protection mechanisms so as to realize rule by criminal law to attempt sophisticated design of the system. The first is the constitutionality of criminal law issues, specifically including the review of the constitutionality of criminal legislation and criminal judicial interpretation to examine the constitutionality of two aspects. On the review of the constitutionality of criminal legislation, the review focuses on exploring the need to review the subject and a review of the specific content of several aspects. Criminal judicial interpretation of the constitutionality of the review is concerned, lies in exploring the constitutionality of interpretation of the importance of criminal justice to explain the legislative tendency corrective and criminal judicial interpretation must follow the principle of legality and so on several aspects. Secondly, with regard to the adjustment of the penal system, first, to protect the right to life from the perspective of the control problems of the death penalty, specifically including the death penalty, legislative control and judicial control. Second, the realization of penalty from the perspective of moderating trend of China’s structural adjustment penalty, specifically, it is a step by step to the light punishment from the heavy structure of structural transformation in order to protect the human rights of crime. Once again on the Code of Criminal Procedure in the field of protection of human rights issues, mainly on how to perfect the principles of due process, presumption of innocence principle, illegal evidence exclusion rules and the right to remain silent system the contents of a detailed study. Finally, about the issue of protection of the rights of victims.Mainly around the criminal settlement in the protection of the rights of criminal victims and criminal victims compensation system in the country to discuss the two aspects, and to make appropriate suggestions更多还原