【作者】 刘莉；

【导师】 魏益华；

【作者基本信息】 吉林大学 ， 法经济学， 2009， 硕士

【摘要】 公平和效率一直是各国司法机构追求的重要目标。二者既相互适应又相互排斥。美国的辩诉交易制度作为高效率且兼顾公平的新刑事诉讼制度逐渐进入人们视野,也不断得到包括大陆法系在内的众多国家和地区的认可和采纳。随着社会经济不断进步,刑事案件频发,案件复杂化加深导致指控证据不足,积案不断增加,司法资源又显得十分匮乏。如何找得到公平和效率的最佳平衡点已经成为当务之急。经济学为我们深刻认识法律制度提供了全新视角,而代表现代刑事诉讼发展趋向的“辩诉交易制度”更有着深刻的经济学根基。从经济学领域研究辩诉交易制度,实际上涉及了现代经济学研究的基本目标即解决社会需求增加和资源稀缺凸显的基本矛盾。辩诉交易制度符合经济学的“机会成本理论”、“最大化”、“博弈理论”、“交易成本理论”的基本分析,本文将经济学的基本分析模式“成本——收益”、“需求——供给”引入我国刑事诉讼的分析中,并以此给出我国引入“辩诉交易制度”的必要性和可行性分析。随着经济的不断发展,辩诉交易制度在我国存在着移植的必要性和可行性,对于美国式辩诉交易制度所存在的弊端,我们可以对辩诉交易制度改进后移植,汲取辩诉交易制度精华并以此完善我国的刑事诉讼制度,提高诉讼效率,其具有重要的理论和实践意义。更多还原

【Abstract】 With the deep reform and rapid development of the economy in our country, a substantial increase in the rate of crime, the backlog of cases, as well as the inefficient adjudgement and other problems has appeared. Plea bargaining system, because of the intrinsic economic theories value with regard to the plea bargaining system, is paid more attention to in the word at present. To take advantage of plea bargaining system, the innovation about criminal suit system has to take the efficiency of justice into account and the reform of the system become urgent in our country.In the first chapter of this paper, the basic analysis of plea bargaining system is given. In the beginning of the twentieth century, the plea bargaining system in the United States appeared which many countries want to introduce into their legal system to solve the problem between the increasing criminal cases and the judicial resources limited nowadays. Plea bargaining system may be better, because the legal system pursues fairness and efficiency as the basic goal, more and more common law and civil law countries choose to transplant the plea bargaining system.On the basic analysis of plea bargaining system above, the author point out the advantages and disadvantages of plea bargaining system ,and then give the essential analysis. The essence of plea bargaining system is to change between the institutive rights and the right to complain in court and the right to dispose of the court procedure. Plea bargaining system will help us to improve the effectiveness of the proceeding, protect the human rights of the defendant, and protect the legitimate rights and interests of the victim duly. American-style plea bargaining system which has some disadvantages may be controlled by building the matched system to maximize the proceeds of transplantation this system. The concept of plea bargaining system is not accurate nowadays. In order to have an accurate definition to understand its nature, I learn from the opinions of the scholars about the concept of plea bargaining system and give a more complete definition.In the second chapter of this paper, the writer points that the plea bargaining system is on the basis of economics analysis. Plea bargaining system contains a series of economic theories, which are used in traditional academic field of criminal procedure law. Plea bargaining system is the best embodiment of this field. The writher starts this chapter by some economic theories such as "opportunity cost", "maximization theory ","game Theory”and then gives further elaborated theory about plea bargaining system, and tries to explain the necessity and the possibility of transplanting plea bargaining system in China, on the basis of economic theories analysis.The opportunity cost of plea bargaining system is in line with the theoretical analysis. The reason why the two sides are willing to trade is that the opportunity cost of the two sides are the smallest when they come to an agreement .In order to maximize the wealth ,Posner use market mechanism instead of "justice" to analysis the action of the legal system. Plea bargaining system will help us to improve the social welfare and reduce the consumption of resource, enhancing the effectiveness of the proceedings which will inevitably be absorbed by national legal systems. In the difficult cases, Plea bargaining is the better choice in the litigation between justice and efficiency which always is the search for equilibrium of the necessary game of the judicial system. Criminal proceeding should take full account of litigation cost on the impact of the effectiveness of the proceedings, in order to achieve an efficient outcome of the proceedings, which can be introduced into the market means to resolve litigation disputes. If we say that the Coarse Theorem shows us the mean to resolve social conflict and market is reasonable, thus the emergence of plea bargaining in the United States and the popularity of the theorem mean that in criminal proceeding this theory is confirmed.Based on chapter two, the chapter three of this paper shows us the further analysis of economic theory .And then show the economic analysis of criminal system and criminal system in our country. The analysis of criminal system is on the behalf of the development of the modern trend of "plea bargaining system" in economics research, which in fact is involved in the study of modern economics that catch the basic goal: to solve the problem between the needs of society to increase and the basic contradiction highlights the scarcity of resources. Plea bargaining system in line with the economics of the "opportunity cost theory", "maximization theory", "game theory", "transaction cost theory", is based on the analysis of the previous chapter. On the basic analysis above, the writer gives the model of "cost– benefit analysis", "demand - supply analysis". Then give the analysis of the introduction of criminal proceedings in our country to show the further analysis of "the necessity and feasibility "of transplanting plea bargaining system.In chapter four of this paper, first of all, the writer lists the status of criminal system in China. There are the backlogs of cases in Chinese criminal justice because of the lack of judicial resources to enable criminal proceedings to reform the existing system, and the urgency appeared in front of us. Chinese legal system about plea bargaining system does exist. The introduction of plea bargaining system can carry out the Criminal Policy "Frankly resist strict leniency", we can motivate the defendant to restore the merits of the truth in time, in order to improve the efficiency of handling cases. In our country, we can learn from the positive elements of Plea bargaining system.The second part of this chapter has proposed the establishment of Chinese system about a specific model of plea bargaining. On the scope of application of plea bargaining system, mainly, plea bargaining system applies only to the crime that the facts are clear while cases are of insufficient evidence. Consultations should be made when the defense and the defendant want, with the consent of the victim prior to the consent of the victim, without compensation or disagree with the consultative process of the application. To protect the victim, it shall not be applied when the victim reject it. Plea bargaining parties involved in the prosecution ,are both willing to accept the "consensus", as a general rule, the two sides should respect it, but as the civil law of contracts , breaking the contract may also exist . Therefore, protection system is necessary to be provided.Any kind of system must be integrated with the national conditions in order to act its effective role. Legal model and the introduction of reference have to start from the very strict conditions on the combination of the principles and norms. Supporting systems are needed to establish as the following: The establishment of more strict legal supervision, as well as relief of improper trading to regulate the system of plea bargaining in order to discard the existence of the disadvantages of plea bargaining system.更多还原