律师辩护实证研究
发布时间：2018-11-15 16:52
【摘要】：辩护制度是刑事司法制度的重要组成部分。辩护的实现程度从一个侧面反映出一个国家的法治水平和人权保障的状况，影响着诉讼的进程和结果，成为刑事诉讼程序民主化与科学化的标志。本文通过实证研究的方法，选取X县作为调查研究的地域范围，以该县法官、律师作为调查研究的主要对象，结合该县法院2002年～2011年刑事判决书，力求客观真实地反映出实践中律师参与辩护的整体情况，辩护资源获取情况以及辩护意见采纳情况，找出实现有效辩护存在的问题，提出实现有效辩护的进路。 本文除引言和结语外，正文分为四个部分，约三万余字。 第一部分是对被追诉人获得律师帮助的人数、方式、案件类型等基本情况及其原因的分析。在所调研的范围中，2002年至2011年十年来，获得辩护人帮助的被告人人数为1505人，占被告人总数的33.55%。辩护人总数为1529人，其中律师人数为1421人，占辩护人总数的92.94%，非律师108人，占辩护人总数的7.06%。获得辩护人帮助的被告人中，委托辩护的被告人人数为1192人，占总数的79.20%；指定辩护的被告人人数为313人，占总数的20.80%。委托辩护中，80%的律师制作书面辩护词提交法庭，指定辩护中只有20%的律师制作书面辩护词提交法庭。就案件类型来说，不同案件类型被告人获得辩护的比例也有所区别，其中危害公共安全罪的辩护比例为18.36%，破坏社会主义市场经济秩序罪的辩护比例为46.51%，侵犯公民人身权利、民主权利罪的比例为47.27%，侵犯财产犯罪的比例为31.37%，妨碍社会管理秩序罪的比例为27.11%，贪污贿赂犯罪的比例为71.09%，渎职罪86.67%。另外，不同阶段律师介入的比例也不相同，大多数律师都是在侦查阶段介入刑事诉讼。总的看来，律师参与辩护的比例普遍较低，经济因素直接制约律师参与刑事辩护的热情，指定辩护形同虚设，不能发挥其应有的作用，律师队伍的专业化远没有实现。 第二部分分析辩护资源获取情况。调查结果显示，在过去十年中，有49件案件的辩护人向法庭提供了证据，占全部有辩护人案件总数的4.1%。审查起诉阶段和审判阶段律师申请调取证据的情况较少。侦查阶段律师会见犯罪嫌疑人难度最大，审查起诉与审判阶段相对简单。虽然律师会100%阅卷，但是受时间和律师自身原因的影响，阅卷走马观花，不能提出实质性建议。客观环境制约了律师取证权的行使，律师职业缺乏社会公众的广泛认可，律师主观消极的态度，没有侦查机关拒绝或者限制律师会见的救济程序，现实观念忽视律师阅卷，致使律师难以获得有效的辩护资源。 第三部分分析辩护意见采纳情况。律师反映，侦查阶段提出的取保候审的意见难以被采纳，而针对其他强制措施提出的辩护意见，检察机关一般是“冷处理”。审查起诉阶段，律师不会就刑讯逼供提出申诉或者控告，检察院在审查结束后会主动听取辩护人的意见。审判阶段，律师一般从事实、证据、定罪、量刑四个角度进行辩护，判决书中明确表示采纳的有591件，占全部案件的49.41%；部分采纳，对没有采纳的理由进行了说明的有242件，占20.23%；明确表示不予采纳对不予采纳的理由进行了说明的有183件，占15.3%，另外还有15.05%的案件不予采纳且没有说出不予采纳的原因。在侦查阶段律师难以为犯罪嫌疑人提供有意义的帮助，审查起诉阶段律师辩护意见缺乏力度，审判阶段律师辩护意见采纳不足，刑事裁判文书的制作缺乏统一的标准。 第四部分论述实现有效辩护的途径。针对以上三个方面存在的问题，笔者分别提出改进的进路。在保证律师参与辩护上，要提高辩护律师的收益，加强其人身权益保障措施，充分发挥律师的作用，强化辩护律师培训，在辩护律师之间形成交流、合作机制，建设成为一支专业化、高素质的辩护律师队伍，落实指定辩护制度，，提高指定辩护律师辩护比例等。在保证律师辩护资源获取的问题上，笔者认为只有改变侦查人员、检察官、法官对律师的态度，逐渐转变社会公众对律师的态度，律师取证才能得到更多的配合；增加拒绝会见的救济程序；放宽律师阅卷的范围，利用现代化的数字设备方便律师阅卷；逐步建立证人强制出庭制度。在保证律师辩护意见采纳的问题上，提出增加侦查阶段律师辩护意见采纳机制，调适控辩关系，从对立走向合作；完善控审关系，保证法官司法独立；改善庭审方式，使定罪与量刑相分离；最后是规范裁判文书形式，增强裁判文书的说理性。
[Abstract]:The defence system is an important part of the criminal justice system. The degree of realization of the defense reflects the state of the rule of law and the human rights guarantee in a country from one side, which influences the process and the result of the lawsuit, and becomes the symbol of the democratization and the scientific process of the criminal procedure. This paper, through the method of the empirical study, chooses the X-County as the geographical scope of the investigation and study, taking the county judge and the lawyer as the main object of the investigation and research, and combining the criminal judgment of the county court from 2002 to 2011, to objectively and truly reflect the overall situation of the lawyer's participation in the defense in practice. in that case of the acquisition of the defence resource and the adoption of the defence opinion, the problem of the effective defense is found out, and a route for the effective defense is put forward. In addition to the introduction and the conclusion, the text is divided into four parts, about thirty thousand. The first part is the number, mode, type of case and other basic conditions of the number, mode, type of case, etc. of the person to be prosecuted for the assistance of the lawyer. Analysis of the causes. In the context of the investigation, the number of accused persons who received the assistance of defenders was 1505 in the period 2002-2011, representing 3 of the total number of accused. 3. 55%. The total number of defenders is 1529, including 1421, 92.94% of the total number of defenders, 108 non-lawyers and the total number of defenders 7. 06%. In the accused, the number of accused in the defence is 1,192, accounting for 79,20% of the total; the number of accused in the defence is 313, accounting for 2 of the total 0. 80%. In the case of a commissioned defence, 80% of the lawyers made written defence words to the Tribunal, and only 20% of the lawyers in the defence case made a written defence In the case of the case type, the proportion of the accused to the defence of the different case types is also different, in which the proportion of the defence to public security crimes is 18.36%, the proportion of the defense to the crime of breaking the order of the socialist market economy is 46. 51%, and the violation of the public security The proportion of people's personal rights and democratic rights is 47. 27%, the proportion of the crime of violating property is 31. 37%, the proportion of the crime of social management order is 27. 11%, the proportion of the crime of corruption and bribery is 71.09%, and the crime of espionage is 8 6.67%. In addition, the proportion of lawyers in different stages is not the same, and most of the lawyers are in the investigation stage. In general, the proportion of the lawyer's participation in the defense is generally low, the economic factors directly restrict the enthusiasm of the lawyer to participate in the criminal defense, specify the defense form and the dummy, can not play its due role, the specialization of the lawyer's team far from being realized. The second part of the analysis The investigation revealed that, over the last 10 years, 49 cases of defenders provided evidence to the Tribunal, accounting for the total number of defenders 4. 1% of the total number of members; application of an adjustment to a lawyer for the prosecution and trial stages In the investigation stage, the lawyer met with the criminal suspect to be the most difficult to prosecute and The trial phase is relatively simple. Although the lawyer will be 100% of the reading, it is affected by the time and the reason of the lawyer's own, Substantive suggestions can be put forward. The objective environment restricts the exercise of the right to obtain the lawyer's evidence, the lack of public recognition by the lawyer profession, the attitude of the lawyer's subjective negative attitude, the lack of the investigation authority to reject or limit the relief procedure and the reality of the lawyer's meeting, The idea of ignoring a lawyer's reading led to the difficulty of getting a lawyer An effective defense. Part three. In the case of the adoption of the defence opinion, the lawyer reflects that the opinions of the pre-trial in the investigation phase are difficult to be adopted, and the procuratorial organs are generally "trunk>" hold treat in the defence of other coercive measures. In the case of a prosecution, a lawyer will not file a complaint or charge against a confession, and the Public Prosecutor's Office shall, after the end of the examination, The opinion of the defender will be actively heard. In the course of the trial, the lawyer generally defended the four aspects of the facts, the evidence, the conviction and the sentence. The judgement clearly indicated that 591, or 49. 41% of the total, had been adopted, and that the reasons for the failure to adopt were 2. Of the 42, 20. 23%, there were 183, 15, 3%, and 15. 05% of the cases that were not admissible and 15. 05% of the cases that were not admissible, and 15. 05% of the cases were not accepted and The reason for not to be adopted is not stated. In the investigation stage, the lawyer is difficult to provide meaningful assistance to the criminal suspect, the lawyer's defence opinion of the prosecution stage is not strong, and the lawyer's defence opinion of the trial stage is not adopted, and the criminal judgment text The creation of a book lacks a uniform standard. The four parts discuss the way of effective defense. In view of the above three aspects, In order to guarantee the lawyer's participation in the defense, to improve the income of the defence counsel, to strengthen the protection measures of the personal rights and interests of the lawyer, to give full play to the role of the lawyer, to strengthen the training of the defence counsel, to form an exchange between the defence counsel, The mechanism of cooperation is to build a professional and high-quality team of defence lawyers to implement the designated defence system. The author thinks that only change the attitude of the investigators, the public prosecutor and the judge to the lawyer, gradually change the attitude of the public to the lawyer, and the lawyer's evidence can get more. Fit; increase the relief procedure for refusing to meet; relax the scope of the lawyer's reading and make use of the modern digital equipment to facilitate access to the lawyer In order to ensure the independence of the judiciary and improve the judicial independence of the judge, the mechanism of the adoption of the defense opinion of the lawyer in the investigation stage is put forward, and the relationship between the defense and the defense is adjusted and the judicial independence of the judge is guaranteed; the improvement of the judicial independence of the judge is guaranteed. The way of trial is to separate the conviction from the sentencing; and finally, to regulate the referees.
【学位授予单位】：西南政法大学
【学位级别】：硕士
【学位授予年份】：2012
【分类号】：D926.5
[Abstract]:The defence system is an important part of the criminal justice system. The degree of realization of the defense reflects the state of the rule of law and the human rights guarantee in a country from one side, which influences the process and the result of the lawsuit, and becomes the symbol of the democratization and the scientific process of the criminal procedure. This paper, through the method of the empirical study, chooses the X-County as the geographical scope of the investigation and study, taking the county judge and the lawyer as the main object of the investigation and research, and combining the criminal judgment of the county court from 2002 to 2011, to objectively and truly reflect the overall situation of the lawyer's participation in the defense in practice. in that case of the acquisition of the defence resource and the adoption of the defence opinion, the problem of the effective defense is found out, and a route for the effective defense is put forward. In addition to the introduction and the conclusion, the text is divided into four parts, about thirty thousand. The first part is the number, mode, type of case and other basic conditions of the number, mode, type of case, etc. of the person to be prosecuted for the assistance of the lawyer. Analysis of the causes. In the context of the investigation, the number of accused persons who received the assistance of defenders was 1505 in the period 2002-2011, representing 3 of the total number of accused. 3. 55%. The total number of defenders is 1529, including 1421, 92.94% of the total number of defenders, 108 non-lawyers and the total number of defenders 7. 06%. In the accused, the number of accused in the defence is 1,192, accounting for 79,20% of the total; the number of accused in the defence is 313, accounting for 2 of the total 0. 80%. In the case of a commissioned defence, 80% of the lawyers made written defence words to the Tribunal, and only 20% of the lawyers in the defence case made a written defence In the case of the case type, the proportion of the accused to the defence of the different case types is also different, in which the proportion of the defence to public security crimes is 18.36%, the proportion of the defense to the crime of breaking the order of the socialist market economy is 46. 51%, and the violation of the public security The proportion of people's personal rights and democratic rights is 47. 27%, the proportion of the crime of violating property is 31. 37%, the proportion of the crime of social management order is 27. 11%, the proportion of the crime of corruption and bribery is 71.09%, and the crime of espionage is 8 6.67%. In addition, the proportion of lawyers in different stages is not the same, and most of the lawyers are in the investigation stage. In general, the proportion of the lawyer's participation in the defense is generally low, the economic factors directly restrict the enthusiasm of the lawyer to participate in the criminal defense, specify the defense form and the dummy, can not play its due role, the specialization of the lawyer's team far from being realized. The second part of the analysis The investigation revealed that, over the last 10 years, 49 cases of defenders provided evidence to the Tribunal, accounting for the total number of defenders 4. 1% of the total number of members; application of an adjustment to a lawyer for the prosecution and trial stages In the investigation stage, the lawyer met with the criminal suspect to be the most difficult to prosecute and The trial phase is relatively simple. Although the lawyer will be 100% of the reading, it is affected by the time and the reason of the lawyer's own, Substantive suggestions can be put forward. The objective environment restricts the exercise of the right to obtain the lawyer's evidence, the lack of public recognition by the lawyer profession, the attitude of the lawyer's subjective negative attitude, the lack of the investigation authority to reject or limit the relief procedure and the reality of the lawyer's meeting, The idea of ignoring a lawyer's reading led to the difficulty of getting a lawyer An effective defense. Part three. In the case of the adoption of the defence opinion, the lawyer reflects that the opinions of the pre-trial in the investigation phase are difficult to be adopted, and the procuratorial organs are generally "trunk>" hold treat in the defence of other coercive measures. In the case of a prosecution, a lawyer will not file a complaint or charge against a confession, and the Public Prosecutor's Office shall, after the end of the examination, The opinion of the defender will be actively heard. In the course of the trial, the lawyer generally defended the four aspects of the facts, the evidence, the conviction and the sentence. The judgement clearly indicated that 591, or 49. 41% of the total, had been adopted, and that the reasons for the failure to adopt were 2. Of the 42, 20. 23%, there were 183, 15, 3%, and 15. 05% of the cases that were not admissible and 15. 05% of the cases that were not admissible, and 15. 05% of the cases were not accepted and The reason for not to be adopted is not stated. In the investigation stage, the lawyer is difficult to provide meaningful assistance to the criminal suspect, the lawyer's defence opinion of the prosecution stage is not strong, and the lawyer's defence opinion of the trial stage is not adopted, and the criminal judgment text The creation of a book lacks a uniform standard. The four parts discuss the way of effective defense. In view of the above three aspects, In order to guarantee the lawyer's participation in the defense, to improve the income of the defence counsel, to strengthen the protection measures of the personal rights and interests of the lawyer, to give full play to the role of the lawyer, to strengthen the training of the defence counsel, to form an exchange between the defence counsel, The mechanism of cooperation is to build a professional and high-quality team of defence lawyers to implement the designated defence system. The author thinks that only change the attitude of the investigators, the public prosecutor and the judge to the lawyer, gradually change the attitude of the public to the lawyer, and the lawyer's evidence can get more. Fit; increase the relief procedure for refusing to meet; relax the scope of the lawyer's reading and make use of the modern digital equipment to facilitate access to the lawyer In order to ensure the independence of the judiciary and improve the judicial independence of the judge, the mechanism of the adoption of the defense opinion of the lawyer in the investigation stage is put forward, and the relationship between the defense and the defense is adjusted and the judicial independence of the judge is guaranteed; the improvement of the judicial independence of the judge is guaranteed. The way of trial is to separate the conviction from the sentencing; and finally, to regulate the referees.
【学位授予单位】：西南政法大学
【学位级别】：硕士
【学位授予年份】：2012
【分类号】：D926.5
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