论我国律师执业权的法律保障

发布时间：2019-03-28 09:04

【摘要】：律师执业权是法律赋予律师的为犯罪嫌疑人、被告人提供法律服务的一项基本权利,我国《律师法》明确赋予了律师在执业活动中享有的会见权、通信权、阅卷权、调查取证权等执业权利,使得律师在诉讼中享有更加丰富的执业权,这既是对律师和被代理人权益的保障,也是我们追求法治进步,实现司法公正的有效探索。但是由于传统文化和司法习惯,以及中国立法普遍存在的重实体、轻程序的弊端,《律师法》在赋予律师充分的执业权时却并没有在程序上对这些权利的实现加以法律规制,也没有设置对律师执业权受到侵害后的救济途径。再加上《刑事诉讼法》一些模糊的、甚至与《律师法》相冲突的程序性设置,使得律师在行使执业权的过程中依然受到重重阻碍。因此本文主要以我国刑事诉讼中律师在权力行使方面存在的问题为切入点,分析保障律师执业权的行使在法治社会、司法建设中的重要意义,提出对完善我国律师执业权的一些构想和建议。本文从五个方面来阐述律师执业权的保障问题,首先在第一部分界定了律师执业权的主要内容,并与西方国家有关律师执业保障的法律规定相比较,解释了律师在执业过程中所享有的会见权、通信权、调查取证权等权利的内容。第二部分分析了我国在保障律师执业权的过程中所存在的问题,并分析了由于律师角色定位的模糊和律师队伍自身素质等原因给律师权利保障问题带来的不利影响。第三部分从律师在法治社会中的使命和保护司法公正、保障律师基本人权三个方面阐述了完善律师执业权保障制度的必要性。最后一部分有针对性的对律师在执业过程中存在的问题提出完善构想和建议,并且从提高律师社会地位和加强律师队伍素质建设两个方面对完善律师执业权的保障机制进行了深入分析。
[Abstract]:Lawyer's right to exercise is a basic right given by law to lawyers to provide legal services for criminal suspects and defendants. The Law of lawyers in our country clearly gives lawyers the right to meet, communicate and read papers in their practice activities. Practice rights such as the right to investigate and collect evidence make lawyers enjoy more abundant executive rights in litigation, which is not only the protection of the rights and interests of lawyers and principal agents, but also the effective exploration of our pursuit of progress in the rule of law and the realization of judicial justice. However, due to the shortcomings of traditional culture and judicial habits, as well as the widespread emphasis on substance and neglect of procedure in Chinese legislation, the Law of lawyers did not regulate the realization of these rights in the process when it gave lawyers full enforcement rights. Also does not set up to the lawyer the right to enforce the right to be infringed after the relief channel. In addition, some vague procedural settings in the Code of Criminal procedure, even in conflict with the Law of attorneys, still hinder lawyers in the exercise of their executive rights. Therefore, based on the problems existing in the exercise of power of lawyers in criminal litigation, this paper analyzes the significance of ensuring the exercise of lawyers' executive rights in the rule of law society and judicial construction. Put forward some ideas and suggestions to perfect the lawyer's executive right in our country. This paper expounds the protection of lawyer's executive right from five aspects. Firstly, it defines the main content of lawyer's executive right in the first part, and compares it with the legal provisions of western countries concerning the legal protection of lawyer's practice. It explains the right of meeting, communication, investigation and evidence in the process of practicing. In the second part, the author analyzes the problems existing in the process of protecting the lawyer's right of enforcement, and analyzes the adverse effects on the protection of lawyers' rights due to the ambiguity of the lawyer's role orientation and the quality of the lawyers' team. The third part expounds the necessity of perfecting the guarantee system of lawyer's enforcement right from three aspects: the mission of lawyers in the society of rule of law, the protection of judicial justice, and the protection of lawyers' basic human rights. In the last part, the author puts forward some perfect ideas and suggestions on the problems existing in the practice of lawyers. And from the aspects of improving the lawyer's social status and strengthening the quality construction of the lawyers, this paper makes a deep analysis on the guarantee mechanism of the lawyer's right to enforce the law.
【学位授予单位】：华中师范大学
【学位级别】：硕士
【学位授予年份】：2011
【分类号】：D926.5

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