我国律师保密制度研究
发布时间：2018-07-26 14:31
【摘要】：律师保密制度是指律师在执业过程中接触到的个人隐私、商业秘密和国家秘密等信息,律师负有不得随意进行公开其在执业过程获悉到的有关委托人的秘密和信息的义务并有权为其拒绝作证的制度。该制度的最初确定源自于英国法学家威格摩尔提出的律师"荣誉说",之后又很多学者相继提出"隐私说"、"功利说"和"信赖说"等观点。最终"信赖说"得到普遍认可。该观点认为律师保密制度基于当事人对律师的信赖,其旨在保证委托人与律师之间能够充分、坦率的交流,以便获得更好的法律服务。由于律师保密制度要求律师严格遵守职业道德,与发现真实的义务之间必定会发生一定的冲突。对律师来说,要区别于一般的公民,因为律师行业对其有着更高的职业道德要求。律师要选择严格的保守职业秘密,这对于维护控辩平等,保障人权、促进律师行业的发展都起到一定的积极作用。律师保密制度构造上,主体除了执业律师外,还应包括相关的辅助人。保密内容上包括个人隐私,商业秘密和国家秘密等信息,和律师在代理案件中获得的案件信息,后者具有一定的扩展性。它不仅包含律师与当事人之间交流的信息,还应该包括律师与第三方之间交流所获悉的秘密和信息。违反了律师保密制度会受到行政,民事,刑事上的处罚。信息牵涉到正在或者将要严重危害他人人身安全和危害国家安全利益时,或者律师执业中获悉的秘密可以对无辜的人、未成年人和孕妇起到保护作用的,律师的保密特权将被阻却。我国关于律师的定位,经历了从最初的国家法律工作者到社会法律工作者的转变,法治发展的不足导致社会对律师的定位不够清晰。社会一般观念认为律师承担着与公检法类似的发现真实义务的责任,当事人权利不能得到充分的保障。另外我国律师保密制度构造上,存在着保密权基础不明确,保密例外规定不全、保密内容规定过于宽泛,具体程序规定模糊,没有专门的侵害职业秘密罪等问题。加之现有的泄漏不公开案件信息罪缺少相关司法解释,不公开范围不明确,现有的律师保密制度在实践中缺少对律师具体的指导,保密制度运行不良,律师承担一定的执业风险。因此完善我国律师保密制度内容,对保密内容进行等级区分、增加律师拒绝作证权和专门的刑事罪名、建立相应的保障程序、形成有层次的处罚机制、充分发挥律师协会作用、加快律师队伍与法院检察院之间队伍交流与流动机制的建设,将有助于改善律师执业环境、保障律师合法权利、发挥律师在社会主义法治社会建设中的重要作用。
[Abstract]:The lawyer secrecy system refers to the personal privacy, trade secrets and state secrets that lawyers have come into contact with in the course of their practice, Lawyers have the obligation to make public at will the secrets and information of their clients which they have learned in the course of their practice and have the right to refuse to testify for them. The initial determination of the system originated from the lawyer's "honor theory" put forward by the British jurist Wigmore, and then many scholars put forward the views of "privacy theory", "utilitarian theory" and "trust theory" one after another. In the end, the "trust theory" was generally accepted. The view is that the lawyer's secrecy system is based on the client's trust in the lawyer and aims to ensure full and frank communication between the client and the lawyer in order to obtain better legal services. Because the lawyer secrecy system requires that the lawyer strictly abide by the professional ethics, there must be a certain conflict between the lawyer and the obligation to discover the truth. Lawyers are distinguished from ordinary citizens because the profession has higher ethical requirements. Lawyers should choose strict professional secrets, which plays a positive role in safeguarding the equality of prosecution and defense, protecting human rights and promoting the development of lawyer profession. In the construction of lawyer's secrecy system, the main body should include related assistant in addition to practicing lawyer. The confidential contents include personal privacy, trade secret and state secret, and the case information obtained by lawyers in the case of representation, which has certain expansibility. It includes not only the information exchanged between lawyer and client, but also the secret and information learned between lawyer and third party. Violations of the lawyer's secrecy system are subject to administrative, civil and criminal penalties. When the information is or will seriously endanger the personal safety of others and the interests of national security, or the secrets learned in the practice of lawyers can play a protective role for innocent persons, minors and pregnant women, The lawyer's privilege of secrecy will be denied. The localization of lawyers in our country has gone through the transformation from the original national legal workers to the social legal workers, and the lack of the development of the rule of law leads to the lack of clarity in the position of lawyers in the society. The general concept of society holds that lawyers bear the responsibility of discovering the truth similar to that of the public security bureau, procuratorate and court, and the rights of the parties concerned cannot be fully protected. In addition, in the construction of our lawyer's secrecy system, there are some problems, such as unclear basis of confidentiality right, incomplete exception to confidentiality, too broad provisions of confidential content, vague specific procedures, and no special crimes against professional secrets. In addition, the existing crime of leakage of information in closed cases lacks relevant judicial explanations, the scope of non-disclosure is not clear, the existing lawyer secrecy system lacks specific guidance to lawyers in practice, and the secrecy system runs poorly. Lawyers bear certain professional risks. Therefore, we should perfect the contents of our lawyer's secrecy system, distinguish the classified contents, increase lawyers' right to refuse to testify and special criminal charges, establish corresponding safeguard procedures, form a hierarchical punishment mechanism, and give full play to the role of the Bar Association. Speeding up the construction of the communication and mobile mechanism between the lawyers and the court procuratorates will help to improve the practice environment of lawyers, protect the legal rights of lawyers, and give play to the important role of lawyers in the construction of socialist society ruled by law.
【学位授予单位】：安徽大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D926.5
本文编号：2146318
[Abstract]:The lawyer secrecy system refers to the personal privacy, trade secrets and state secrets that lawyers have come into contact with in the course of their practice, Lawyers have the obligation to make public at will the secrets and information of their clients which they have learned in the course of their practice and have the right to refuse to testify for them. The initial determination of the system originated from the lawyer's "honor theory" put forward by the British jurist Wigmore, and then many scholars put forward the views of "privacy theory", "utilitarian theory" and "trust theory" one after another. In the end, the "trust theory" was generally accepted. The view is that the lawyer's secrecy system is based on the client's trust in the lawyer and aims to ensure full and frank communication between the client and the lawyer in order to obtain better legal services. Because the lawyer secrecy system requires that the lawyer strictly abide by the professional ethics, there must be a certain conflict between the lawyer and the obligation to discover the truth. Lawyers are distinguished from ordinary citizens because the profession has higher ethical requirements. Lawyers should choose strict professional secrets, which plays a positive role in safeguarding the equality of prosecution and defense, protecting human rights and promoting the development of lawyer profession. In the construction of lawyer's secrecy system, the main body should include related assistant in addition to practicing lawyer. The confidential contents include personal privacy, trade secret and state secret, and the case information obtained by lawyers in the case of representation, which has certain expansibility. It includes not only the information exchanged between lawyer and client, but also the secret and information learned between lawyer and third party. Violations of the lawyer's secrecy system are subject to administrative, civil and criminal penalties. When the information is or will seriously endanger the personal safety of others and the interests of national security, or the secrets learned in the practice of lawyers can play a protective role for innocent persons, minors and pregnant women, The lawyer's privilege of secrecy will be denied. The localization of lawyers in our country has gone through the transformation from the original national legal workers to the social legal workers, and the lack of the development of the rule of law leads to the lack of clarity in the position of lawyers in the society. The general concept of society holds that lawyers bear the responsibility of discovering the truth similar to that of the public security bureau, procuratorate and court, and the rights of the parties concerned cannot be fully protected. In addition, in the construction of our lawyer's secrecy system, there are some problems, such as unclear basis of confidentiality right, incomplete exception to confidentiality, too broad provisions of confidential content, vague specific procedures, and no special crimes against professional secrets. In addition, the existing crime of leakage of information in closed cases lacks relevant judicial explanations, the scope of non-disclosure is not clear, the existing lawyer secrecy system lacks specific guidance to lawyers in practice, and the secrecy system runs poorly. Lawyers bear certain professional risks. Therefore, we should perfect the contents of our lawyer's secrecy system, distinguish the classified contents, increase lawyers' right to refuse to testify and special criminal charges, establish corresponding safeguard procedures, form a hierarchical punishment mechanism, and give full play to the role of the Bar Association. Speeding up the construction of the communication and mobile mechanism between the lawyers and the court procuratorates will help to improve the practice environment of lawyers, protect the legal rights of lawyers, and give play to the important role of lawyers in the construction of socialist society ruled by law.
【学位授予单位】：安徽大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D926.5
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