辩护律师刑事豁免权研究

发布时间：2018-05-24 04:15

本文选题：辩护律师 + 刑事豁免　；参考：《广西师范大学》2017年硕士论文

【摘要】：近年来,法学界及律师界对律师辩护豁免权问题进行了多方面多角度的讨论和研究,但在司法实践中仍然存在对律师辩护豁免权问题认识不统一,缺乏可操作标准,以及立法层面缺失等问题,从而导致律师诉讼权利始终无法得以有效保障,律师因执业行为被追诉被迫害的案例也层出不穷,严重影响律师辩护工作的正常开展。如广西北海多名律师被拘案、李庄伪证案等涉及律师履行辩护职责而被追责的案件频频发生,且争议、影响极大,律师界人人自危,所有律师无不谈伪证色变,严重挫伤律师参与刑事辩护的积极性,严重影响律师刑事辩护制度应有的作用。如何从立法层面,司法层面以及外部环境层面对律师豁免权进行构建和完善,真正保障刑事辩护律师在刑事诉讼活动中的合法权利就成了当务之急!故此,希望通过对现实问题的调查分析,结合国外先进国家和地区的制度设计理念,探明建立完善的律师辩护豁免制度的实质意义和方法,为我国立法者和司法者提供一点理论参考,以期实现中国律师刑事辩护制度的不断进步和完善。本文总共分为五个部分。首先从理论方面进行探讨,对律师刑事辩护豁免权进行一个整体概述,包括概念、特征、内容等分析。第二部分可以对律师刑事辩护豁免权的理论基础和价值取向进行分析说明,点明此制度在我国的发展意义和目的。这两个部分,对律师刑事辩护豁免权进行一个全面的阐述,使读者能够对律师刑事辩护豁免权产生认识的基础,对构建中国特色的律师刑事辩护豁免权有一个初始概念。论文的第三部分采用从外到内的逻辑顺序,首先概述英美法系国家,比如英国、美国等,律师刑事辩护豁免权的基本状况,而后再概述大陆法系国家,例如法国,卢森堡的律师刑事辩护豁免权的情况,进而对此进行评析做出小结,总结出律师刑事辩护豁免权之所以能在英美法系、大陆法系国家能够成功运用的原因或分析某些国家为何不采用律师刑事辩护豁免权或其在实行律师刑事辩护豁免权时所遇到的阻碍,为分析我国是否能实行或是否应实行律师刑事辩护豁免权奠定理论基础。论文第四、五部分是论文的重点内容,第四部分是对中国律师刑事辩护豁免权的现状及存在的缺失方面的分析,其中,现状分别从我国实行律师刑事辩护豁免权的法律规定和司法实践两方面阐述;结合案例分析,分析在实践中律师刑事辩护豁免权存在问题的原因。第五部分是我国刑事辩护豁免权的构建和完善。结合新颁布的《刑事诉讼法》中的辩护制度的有关内容,以及《律师法》的相关条例,从立法,司法及外部环境方面,通过主体、范围的确定,相关法条的完善,惩戒机制的建立,和律师自律性的提高等内容的设计,构建出一个适合我国体制以及政策的律师刑事辩护豁免权。
[Abstract]:In recent years, legal circles and lawyers have discussed and studied the defense immunity of lawyers from many angles, but in judicial practice, there is still a lack of unified understanding of the defense immunity of lawyers and lack of operational standards. As well as the lack of legislation, resulting in lawyers' litigation rights can not be effectively protected, lawyers are prosecuted for their practice and persecuted cases also emerge one after another, seriously affecting the normal development of lawyers' defense work. For example, many lawyers in Beihai in Guangxi have been detained, Li Zhuang perjury cases and other cases involving lawyers being pursued and held responsible for their defense duties have occurred frequently, and disputes have had a great impact on them. The lawyers' circles are in great danger, and all lawyers do not talk about perjury. Seriously dampening the enthusiasm of lawyers to participate in criminal defense, seriously affect the role of lawyers' criminal defense system. How to construct and perfect the lawyer's immunity from the aspects of legislation, judicature and external environment, so as to ensure the legal rights of criminal defense lawyer in criminal proceedings becomes a top priority. Therefore, it is hoped that through the investigation and analysis of practical problems and the concept of system design in advanced countries and regions abroad, the essential significance and method of establishing a perfect defense exemption system for lawyers will be proved. To provide some theoretical reference for the legislator and the judiciary in China, in order to realize the continuous progress and perfection of the criminal defense system of China's lawyers. This paper is divided into five parts. First of all, from the theoretical aspects of the discussion, a comprehensive overview of lawyers' immunity from criminal defense, including the concept, characteristics, content and so on. The second part can analyze the theoretical basis and value orientation of lawyers' immunity from criminal defense, and point out the significance and purpose of this system in our country. These two parts make a comprehensive exposition on the immunity of lawyer's criminal defense, so that the reader can have the basis of understanding the immunity of lawyer's criminal defense, and have an initial concept to construct the immunity of lawyer's criminal defense with Chinese characteristics. The third part of the thesis uses the logic order from the outside to the inside, first outlines the basic situation of the common law countries, such as the United Kingdom, the United States, and lawyers' immunity from criminal defense, and then summarizes the civil law countries, such as France. Luxembourg's immunity from criminal defense of lawyers, and then comment and make a summary of this, summed up that lawyers' immunity from criminal defense can be in the common law system, The reasons why States of the civil law system have been able to apply it successfully or to analyse why some States do not use the immunity of counsel for criminal defence or the obstacles they encounter in the exercise of the immunity of lawyers for criminal defence, It lays a theoretical foundation for analyzing whether the immunity of criminal defense of lawyers can be or should be implemented in our country. The fourth and fifth parts of the thesis are the key contents of the thesis, the fourth part is the analysis of the current situation and the deficiency of the immunity of Chinese lawyers' criminal defense, among which, The present situation is elaborated from the legal provisions and judicial practice of the immunity of criminal defense of lawyers in our country, and the reasons for the problems in the immunity of criminal defense of lawyers in practice are analyzed in combination with the analysis of cases. The fifth part is the construction and perfection of the immunity of criminal defense in our country. Combining the relevant contents of the defense system in the newly promulgated "Criminal procedure Law" and the relevant regulations of the "lawyers Law", from the aspects of legislation, judicature and external environment, through the determination of the subject, the scope, and the perfection of the relevant articles of the law, With the establishment of disciplinary mechanism and the improvement of lawyers' self-discipline, the author constructs a lawyer's immunity from criminal defense, which is suitable for the system and policy of our country.
【学位授予单位】：广西师范大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D926.5

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