【作者】 杨明；

【导师】 张旭；

【作者基本信息】 吉林大学 ， 刑法学， 2010， 博士

【摘要】 超越刑事实体法规定的司法出罪已经不是中国的特色,为了解决超法规出罪的正当性问题,也是为了探讨程序法与实体法的关系,本文从刑事一体化角度出发,在考察国内外立法与实践的基础上,论证了程序法应当具有独立的出罪功能。罪刑法定原则追求刑事法治的目的决定了其具有消极性,即不禁止将犯罪行为进行非犯罪化处理。程序法的独立价值追求又决定了程序法具有使实体法相对化的效果,补充和否定实体法的内容是程序法独立性的体现。可见,程序法应当具有独立出罪的功能不但没有原则性障碍,还有充分的理论根据。我国现行刑事诉讼法的独立出罪规定和大量的司法出罪实践,更表明程序法具有独立出罪功能的必要性与可行性。超法规出罪不是法治国的常态,由于出罪处分与保障人权的法治精神相吻合,以政策替代法律的司法在一定程度上可以容忍,但是,法律必须及时调整,以满足规则之治的需要。本文分析了程序法与实体法在刑事领域的作用机制,提出了程序法独立出罪的依据和原则性要求,分析论证了应当由程序法规定出罪的具体事由,并就每一个具体的出罪事由设计了较为完备的程序保障和制约。更多还原

【Abstract】 The prevailing restorative justice in the current worldwide also affects China, whose representation is that misdemeanor cases can be mainly settled by criminal reconciliation in criminal judicial field. Criminal reconciliation is founded on understanding after the victim gets compensation from the injurer, and judicial organ does not investigate the criminal responsibility or mitigate punishment, or impose responsibility on the injurer with alternative measures out of penalty. For such practice achieving better social effects, many parts of China have established local regulations to adjust attempting criminal reconciliation. The practice of judicial independent decriminalization and emergence of local criminal legislation arise heated argument in theoretical circle. Meanwhile, for lack of definite and unified legal regulation, practical confusion of criminal reconciliation is also not a neglected reality. In order to resolve judicial rationality beyond legislation, and further to deal with relation between the procedural law and the substantive law, the dissertation analyzes and summarizes lots of decriminalized operations independent of substantive law through probing into judicial practical reason beyond criminal law, and puts forward the basic argument that procedural law shall have independently decriminalized function under the proposition of procedural law having independent value.This dissertation can be divided into four chapters except for the introduction and conclusion, every chapter respectively being the basis of decriminalized function in procedural law, the ground and principle of decriminalization in procedural law, the situation of decriminalization in procedural law, and the regulation of decriminalization in procedural law.The preface introduces judicial background of this proposition and the survey of theoretical disputes. The present judicial decriminalized situations beyond the whole legal letters are mainly manifested by criminal reconciliation, whose appearance is caused by two following factors. On one hand, for legal guarantees of victims being inadequate in criminal cases, complaint, appeal and mass conflicts happen frequently. To solve the consequent problems of social instability, many courts begin to make injurer confess the error and compensate and console the victim in exchange for crime and punishment. Empirical studies have proved achieving better social effects. On the other hand, with the worldwide restorative justice affecting Chinese judicature, instead of keeping order with the sole way of punishing crime, criminal justice emphasizes optimal comprehensive effects of application of law, namely whether conviction or punishment under the criminal law does not matter only to restore destroyed social order. Against this historical background, criminal policy of tempering justice with mercy is pushed out as a Chinese basic criminal policy, and becomes the practical ground as an alternative criminal law. Under this circumstance, academicians start to discuss some following questions. Whether the law should be substituted by the policy. Whether the judicial decriminalization is against the principle of conviction and penalty according to law. Whether the judicial proceeding should have decriminalized function beyond the substantive law. Which decriminalized things can be dealt with through the procedural law? How the law regulate the judicial decriminalization? And so on.Chapter One is the basis of decriminalized function in procedural law. Through the perspective of the principle of conviction and penalty according to law, which achieves the aim of protecting human rights by imposing restrictions on state powers and represents the rule of law, the dissertation concludes that this principle is of negativity, and does not prohibit treating criminal act under the criminal law with decriminalized act. After sweeping away the principled obstacles of judicial decriminalization, the dissertation discusses functional mechanism between substantive law and procedural law in criminal domain. The procedural law having innate tool value decides its dependency opposite the substantive law, and criminal policy needs their close collaboration to get implemented. While having means value, procedural law shall have independent value which determines to make the substantive law relativity, namely supplement and negation to the substantive law. Hence, independent value of procedural law decides its independently decriminalized function.Chapter Two is the ground and principle of decriminalization in procedural law. Upon generalizing arbitrarily prescribed decriminalization in Chinese current criminal procedural law independent of criminal law, the dissertation summarizes decriminalization in each period of action does not perform uniform criterion of conviction and punishment ,and so forth, and also analyzes and demonstrates the necessity and rationality of decriminalization such as discretionary non-prosecution in procedural law. Based upon procedural law having decriminalized function, directing the disorder of current criminal procedural law, the dissertation puts forth that procedural decriminalization should rest on due process, policy requirement and utility. The symbol of independent value of the procedural law is just due process whose standard differs in adversary justice and cooperate justice. With policy requirement being of randomness, criminal policy can be effectively carried out, and avoid judicature beyond law to the greatest extent only if procedural law meets handling mechanism of temporary, bursty and special events etc. Exemption from criminal responsibility is of impartiality in great many cases in accordance with utilitarianism which aims to protect the interests of the vast majority of the people. Defining the basis of procedural decriminalization is not enough to guarantee rationality of procedural decriminalization, procedural law must also be careful to keep internal coordination with substantive law, namely observing the same legal connotations, pursuing some common legal values, and using roughly the same legislative ways. Where decriminalized division is concerned, the procedural law and the substantive law have no absolutely insurmountable border, and the procedural law just provides what happens unforeseen in the substantive law. Decriminalized insufficiency and incapability in substantive law shall be added by procedural law, whose supplementary way is to play out technical advantages of procedural law, and to reinforce flexibility of applied law by giving the judge discretional rights. In addition, procedural decriminalization also persists in meeting the principle of the most urgent need that procedural decriminalization can deals with the present urgent situation when legal values collide. Whatever be the rationality, procedural decriminalization can not but be subjected to the law, because the rule of law first shows in the rule of form, namely the law fitting with the spirit of guaranteeing human rights must exist in the form of legal system. Upon the generation of judicial practice, procedural law shall regulate the maturely decriminalized circumstances through strict legal procedures to guarantee the substantive law is unapt to be denied, and to guarantee the reasonability of procedural decriminalization. For decriminalization being tolerant measure of the state to the individual and conforming with the spirit of human rights, decriminalization based upon criminal policy beyond legislation can be tolerable early in the country ran by law. Impartial judicature without legal basis can be overcome through expanding discretional rights of the judge after the legislative technology matures.Chapter Three is the situation of decriminalization in procedural law. This chapter summarizes reasonably decriminalized situations in international conventions, foreign legislations and judicial practices both home and abroad, which include criminal reconciliation, illegal procedure, special investigation, bargaining exemption, criminal’s death, judgment of not guilty, and lawyer’s defending speech etc. Exclusionary rule of illegally obtained evidence in illegal procedure probably cause pampering the crime. In the investigation of luring intention, the defendant may be dispensed from criminal responsibility for trap defense, and the investigator shall be exempted from the responsibility of abetting the crime. Undercover investigator participating in crime shall also be exempted. Bargaining exemption includes the exemption of witness, confession of guilt and special contribution. All these decriminalized situations having consistency with current criminal law in legislative ideas, as safeguarding the value realization of criminal law, the procedural law shall realize its independent value according to due process and utilitarianism etc.Chapter Four is the regulation of decriminalization in procedural law. This chapter designs the procedure which ensures the implementation of decriminalized function directing every decriminalized situation. All these procedures can lay restraints on decriminalized activity of procedural step in applied range, applied condition, and approval and execution, and so on. In consideration of the peculiarity of every decriminalized situation, procedural design of decriminalization is to ensure implementation of decriminalized activity within rationality and feasibility, to ensure its adaptation to criminal judicial practice with Chinese characteristics,and still to ensure its operability.The dissertation is a new probe into function of procedural law, and concludes that procedural law shall have independently decriminalized function. Decriminalization of procedural law shall allow for decriminalization of substantive law to establish decriminalized basis, and shall keep inherent consistency with substantive law, and also shall consider the determination of every decriminalized situation, and so forth. The above ideas can promote a thorough study of the criminal integration. The rational analysis and procedural design of concretely decriminalized situation not only provide valuable references for the modification of Chinese Criminal Procedural Law, but also have a guiding effect on the present decriminalized practice beyond the law .更多还原