我国辩护律师执业风险问题研究

发布时间：2018-06-23 05:52

本文选题：辩护 + 辩护律师　；参考：《西南财经大学》2012年硕士论文

【摘要】：基于法定辩护权产生的辩护,是同控诉相对立的一种基本诉讼职能,没有控诉就没有辩护,具体是指在刑事诉讼中,犯罪嫌疑人、被告人及其辩护人为反驳指控机关控诉,根据事实和法律而提出有利于被指控人的理由及证据,用以证明被告无罪、罪轻及可以免除刑事处罚,以维护被指控人合法权益的活动。我国《宪法》及《刑事诉讼法》将“被告人有权获得辩护”作为一项重要的诉讼原则予以确认。同时国家建立辩护制度其核心价值在于维护被指控人的辩护权,以权利制约权力、以权利维护权利。因犯罪嫌疑人、被告人人身受限制及法律知识有限,因此他们需寻求辩护人的帮助,而在法律规定的辩护人中,律师是最主要的,同时也是最有能力维护犯罪嫌疑人、被告人合法权益的主体。近现代国家法治文明发展进程表明,律师制度的建立以及发展逐渐成为衡量国家民主、法治文明的重要标志,在国家法律制度中占据十分重要的地位。自我国1979年律师制度恢复及发展30余年来,这一行业已逐步壮大,不仅从业人数迅速增加,而且律师事务所的数量和规模也在不断扩大。刑事辩护工作也得到迅速发展,在促进我国社会主义民主法治建设,维护犯罪嫌疑人、被告人的合法权益等方面发挥了积极的作用,但仍存在诸多不足,如刑事辩护律师执业存在各种风险,国家对律师的执业保障一直处于令人尴尬的境地,亟待从理论上加以探讨、提高,从实践中加以总结、完善。国家对此虽作了不少努力,但效果并不明显,治标不治本。 1996年修改《刑事诉讼法》、2008年施行新《律师法》以及将于2013年1月1日开始实施《刑事诉讼法修正案》等一系列举措均体现了国家在不断的完善刑事辩护体制,但我国辩护制度仍存在一些立法缺陷和实践困难。中国刑事立法存在缺陷,辩护体制不完善,律师被抓的现象时有发生。《刑法》第306的规定为部分公安及司法机关工作人员任意追究律师伪证责任大开方便之门,为其滥用职权埋下伏笔；新《律师法》对律师角色给予了准确定位,但各司法主体乃至社会仍然存在着误解、排挤：实体法和程序法不完善等原因造成我国辩护律师执业存在风险。法律赋予律师的辩护权利形同虚设,因执业存在风险,使得很多辩护律师不愿介入刑事案件,刑事案件律师参与辩护率较低,被告人的合法权益也无法得到有效的保障。律师执业面临阻碍其发展的瓶颈,律师执业过程中面临的风险愈来愈大,其合法权益时常受到侵犯,致使愿意办理刑事案子的律师人数减少,律师参与刑事辩护的比率降低。律师执业权益得不到充分保障有碍于中国刑事法治发展,更不利于保障犯罪嫌疑人、被告人的合法权益。鉴于此,对我国辩护律师执业环境及现状进行分析,找出目前我国辩护职能相对弱化的症结和问题所在迫在眉睫。而解决律师权利保障问题、降低其执业风险是一个系统工程,绝非单纯完善某一方面即可达到目的,也并非某几个法条就可以完善、规范,需要立法者、司法者、社会公众以及律师自身形成共识并作坚持不懈的努力。本文将从以下几方面展开论述：第一部分：分析我国建立辩护制度的理念,同时从法律规定和实践中分别对律师所担当角色进行分析。经律师法的不断修正,对律师做出了较为准确的定位,但社会公众仍然对律师存在种种误解,律师的社会地位不高,社会对律师的认可度较低。第二部分：简要介绍两大法系主要代表国家律师制度的建设及对律师面临的执业风险及执业权利保护。两大法系主要代表国家对律师做出了一些切实保障律师执业权利的规定,对我国在以后的改革中有切实的借鉴作用。第三部分：从李庄一案及相关案例对我国辩护律师执业所面临的风险种类及成因进行分析。律师执业风险因标准划分不同,而存在不同的类别,按照风险损害的直接利益为标准,可将风险划分为刑事责任风险,人身安全风险,信誉风险,经济风险等；同时从法律理念、法律规定以及实践等各个层面上分析律师存在执业风险的成因。第四部分：在分析我国辩护律师执业风险形成成因基础上,提出改善措施以完善律师执业权利保障,降低律师执业风险,保障律师的人身权益等其他合法权益不受侵害。
[Abstract]:The defence based on the right of legal defence is a basic litigation function against the accusation. Without a complaint, there is no defense. In the case of a criminal suit, the criminal suspect, the defendant and his defender refutes the accusation of the organ, and the reasons and evidence in favor of the accused are raised in accordance with the facts and laws to prove that the accused has been accused. The activities of innocence, light and criminal punishment in order to protect the legitimate rights and interests of the accused. China's < constitution > and < Criminal Procedure Law > to affirm the "defendant has the right to defend" as an important principle of litigation. At the same time, the core value of the state's establishment of the defense system is to safeguard the right of the accused to defend the right and to make a right system. For the criminal suspects, the defendants are restricted and the legal knowledge is limited, so they need to seek the help of the defender, and among the defenders of the law, lawyers are the most important and the main body of the most capable of safeguarding the criminal suspects and the legitimate rights and interests of the accused.
The process of the development of the rule of law civilization in modern countries shows that the establishment and development of the lawyer system has gradually become an important symbol of the national democracy and the rule of law civilization. It occupies a very important position in the national legal system. In the 30 years of the recovery and development of the lawyer system in 1979, the industry has grown gradually, and the number of employees is not only rapid. In addition, the number and scale of the law firm are expanding, and the criminal defense work has developed rapidly. It has played a positive role in promoting the construction of socialist democracy and the rule of law, maintaining the legitimate rights and interests of the accused and the accused, but there are still many shortcomings, such as the existence of various kinds of wind in the practice of criminal defense lawyers. The state has been in an embarrassing situation for the lawyer's practice guarantee. It needs to be discussed in theory, to be improved, to be summed up and perfected from practice. Although a lot of efforts have been made in the state, the effect is not obvious, and the treatment is not a cure.
A series of measures, such as the amendment of the criminal procedure law, the law of criminal procedure in 1996, the implementation of the new law in 2008 and the implementation of the amendment of the criminal procedure law in January 1, 2013, all reflect the continuous perfection of the criminal defense system in the state. However, there are still some legislative defects and practical difficulties in the defense system in China. As the system is not perfect, the phenomenon of lawyers being arrested is happening. < penal law > 306th is a convenient way for some public security and judicial officers to investigate the perjury of lawyer's perjury at random. The new < lawyer law > gives an accurate position to the role of lawyers, but there are still misunderstandings in the judicial bodies and even the society. There is a risk in the practice of defense lawyers in our country. The law endows lawyers with the right of defense. Because of the risk of practice, many defence lawyers are reluctant to intervene in criminal cases, the lawyers' participation in criminal cases is low and the legitimate rights and interests of the defendants are not effective. Guarantee.
Lawyer practice is facing a bottleneck that hinders its development. The legal rights and interests of lawyers are more and more serious, and their legitimate rights and interests are often violated. The number of lawyers willing to deal with criminal cases is reduced, the ratio of lawyers' participation in criminal defense is reduced. It is beneficial to protect the legal rights and interests of the criminal suspects and the defendants. In view of this, it is urgent to find the crux and the problems of our country's defense function relatively weak, and to solve the problem of the protection of the lawyer's rights, and to reduce the practice risk of the lawyer is a systematic project, not a single perfect one. To achieve the goal, and not a few laws can be improved, standard, the need for legislators, the judiciary, the public and lawyers themselves to form a consensus and make unremitting efforts. This article will be discussed from the following aspects:
The first part is to analyze the concept of the establishment of the defense system in our country. At the same time, the role of the lawyer is analyzed from the legal provisions and the practice. After the constant revision of the lawyer law, the lawyer has made a more accurate positioning, but the public still has various misunderstandings on the lawyer, the lawyer's social status is not high, and the society acknowledgement of the lawyer. The degree of availability is low.
The second part is a brief introduction to the construction of the legal system of the two major legal systems, the practice risks and the protection of the rights of the lawyers. The main representatives of the two legal systems have made some practical provisions to protect lawyers' practice rights, and have a practical reference for the future reform of our country.
The third part analyses the types and causes of the risks faced by the lawyer's practice in China from the case of Li Zhuang and related cases. The lawyer's practice risk is divided into different categories, and there are different categories. According to the direct interests of the risk damage, the risk can be divided into the risk of criminal responsibility, the personal safety risk and the reputation risk. Economic risks and so on. At the same time, it analyzes the causes of lawyers' professional risks from various aspects such as legal concepts, legal provisions and practice.
The fourth part: on the basis of the analysis of the causes of the risk of the practice of defense lawyers in China, the improvement measures are put forward to improve the protection of the rights of lawyers' practice, to reduce the risk of lawyers' practice and to protect the rights and interests of lawyers.
【学位授予单位】：西南财经大学
【学位级别】：硕士
【学位授予年份】：2012
【分类号】：D926.5;D925.2

【参考文献】