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Cross-examination and Its Practical Asopects Emphasis on admisibility of evidence
|Authors: ||Julia Su|
|Contributors: ||NTOU:Institute of the Law of the Sea|
|Issue Date: ||2011-06-30T07:17:04Z
|Abstract: ||民國九十二年九月一日正式開始實施「刑事訴訟新制」，採行改良式當事人進行主義之架構，在審判程序調查證據時，以對證人、鑑定人之交互詰問為核心，透過詰問權的行使，有助於法院正確的認定事實。交互詰問制度為我國刑事訴訟之發展樹立一個新的里程碑。 本論文探討之重點，即在檢視目前仍處於萌芽階段的交互詰問制度，由於院、檢、辯三方對此一新制的遊戲規則並不熟悉，在實務運作上即產生許多爭執，尤其是整個交互詰問重心在調查證據，而我國的證據法則之規範隨著交互詰問之實施，已與過去大不相同，有關證據排除法則之認定標準亦有頗多爭議之處，可供探究，這是本文所要探討的主要內容。 本論文首先在第一章序論中提出研究本文的動機，目的及方法，次於第二章探討交互詰問之性質與內涵，並在第四章提出在實務上所產生的問題及解決之道，以供參考。由於交互詰問僅適用於審判階段，在檢方偵查中並不適用，本文第三章特別從人權保障觀點來探討此一問題，認為我國將來應修法採行「起訴狀一本主義」。 本論文第五章說明交互詰問與證據排除法則之關係，認為我國採「裁量排除理論」，在實務適用上如何運作，仍有待考量，並在第六章以具體實例加以說明，最後在第七章提出修法建議，作為實務上改進之道。|
The implementation of “New Rules that apply to Criminal Litigation” on September 1,2003, adopts an adversarial framework which emphasizes on cross-examination of witnesses and experts while evidence are being examined in the trial procedures. It is hoped that by the exercise of powers to cross-examine the parties, the court will find such exercise beneficial in identifying facts accurately and precisely. Therefore, the enforcement of the new cross-examination system can be considered a milestone in the development of the criminal litigation system in our country. In this dissertation, the author examines the current cross-examination system, which is considered to be in its primitive stages whereby the court, prosecutor and defense are relatively unfamiliar with the rules of the game, and in the practical sense tend to cause many disputes, especially when the goal of the cross-examination process is essentially to investigate and examine the evidence. The rules of evidence in our country, which determines admissibility of evidence, have deviated far from the past rules after the implementation of cross-examination procedures. Consequently, there are still many disputed points regarding what evidence is admissible and what is not. This is one of the author’s major aims in this dissertation. In this dissertation, Chapter one contains an introduction which outlines the reason which motivated the author to research into this topic, the aim which the author wishes to achieve via this dissertation as will as the research methods used. In the second Chapter, the author examines the nature and scope of cross-examination and in Chapter four, the author identifies problems that commonly arise in practice and ways to resolve such problems for the readers reference. Because the process of cross-examination only applies in the trial stage and not applicable in the prosecutors investigation stage, Chapter three examines this issue especially from the protection of human rights perspective since the author is of the view that amendment should be undertaken in the future to adopt a system where evidence is only presented to the court during trial. Chapter five of this Dessertation explains the relationship between cross-examination and admissibility of evidence. The author is of the view that the current trial procedures have its down sides in practice and illustrates this aspect by concrete examples in Chapter six. Finally in chapter seven, the author devises some recommendations on how the law should be changed to improve pracrical usage.
|Appears in Collections:||[海洋法律研究所] 博碩士論文|
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