律师辩护权的制度缺陷与完善
发布时间：2019-05-09 20:36
【摘要】：当今世界上主要有两种诉讼模式：一是大陆法系国家盛行的在诉讼过程中较为强调检察官、法官职权作用,相对淡化被告人辩护职能的职权式诉讼模式；二是英美法系国家实行的较为强调检察官、被告人主导诉讼程序,讲求诉辩平等、控辩相对抗,审判中立的抗辩式诉讼模式。我国现行刑事审判模式类似于大陆法系国家的职权式诉讼模式,控、辩、审三方形成了一个控辩平等、法官居中裁决的稳定三角支架。但事实上我国的刑事审判模式在一定程度上具有控、审不分,控辩力量失衡的缺陷。因此赋予律师更大的辩护权是实现刑事诉讼控辩平等的重要举措,对根据事实与法律最大限度地维护犯罪嫌疑人、被告人的合法权益,保证司法公正,起着举足轻重的作用。然而律师的辩护权能否得到有效的实现不仅取决于立法上的规定，更依赖于在实践中能否得到真正的落实。联合国《关于律师作用的基本原则》制定了一系列条文来保障律师的辩护权，形成了律师辩护权保护的国际标准，虽然不具有强制执行的效力，但已被许多国家认同和遵循。我国也在不断致力于保障和完善律师的辩护权，自1979年恢复律师制度以来，我国律师辩护权制度得到了不断的发展与完善。1996年《刑事诉讼法》的修改在律师辩护权制度上更是取得了很大进步，但由于时代的局限，立法上仍然存在不少问题。2007年《律师法》修改时在律师会见权、阅卷权、调查取证权等方面有所突破，，但与1996年《刑事诉讼法》的规定之间亟须整合一致。此次《刑事诉讼法》的修改吸收了《律师法》中进步、成熟的理念和经验，注意到了与《律师法》的衔接，并结合中国现实修改完善了律师辩护权。但是缺陷与进步如影随形，相关立法的出台并未能根除制度上的缺陷，这些缺陷仍然影响和制约了律师辩护作用的发挥。本文通过笔者在工作中遇到的三个真实案例，从会见权、阅卷权和调查取证权三个方面揭示律师辩护权存在的制度缺陷，剖析缺陷存在的原因以及针对这些缺陷提出自己的一些修改和完善建议，希望在未来的立法中能够弥补这些缺陷。
[Abstract]:Nowadays, there are two main litigation modes in the world: first, the civil law countries emphasize the role of prosecutors and judges in the process of litigation, and relatively dilute the functional litigation mode of the defense function of the accused; Second, the Anglo-American law system countries put more emphasis on the prosecutor, the defendant led the proceedings, emphasizing the equality of litigation and defense, the confrontation between prosecution and defense, and the neutral mode of adversarial litigation. The current criminal trial mode in our country is similar to the functional litigation mode in civil law countries. The three parties of prosecution, defense and trial have formed a stable triangular support of equality of prosecution and defense and central decision of judges. However, in fact, to a certain extent, the criminal trial mode of our country has the defects of charge, trial, and the imbalance of prosecution and defense power. Therefore, giving lawyers greater right to defend is an important measure to realize the equality of prosecution and defense in criminal proceedings, and plays an important role in safeguarding the legitimate rights and interests of criminal suspects and defendants and ensuring judicial justice to the maximum extent according to facts and laws. However, the effective realization of lawyers' right to defense depends not only on the legislative provisions, but also on whether they can be truly implemented in practice. The United Nations basic principles on the role of lawyers have formulated a series of provisions to protect the right of lawyers to defense, forming an international standard for the protection of lawyers' right to defence. Although it does not have the effect of enforcement, it has been recognized and followed by many countries. Our country is also constantly committed to safeguarding and improving the right to defense of lawyers. Since the restoration of the lawyer system in 1979, The system of lawyers' right to defense in our country has been continuously developed and perfected. The revision of the Criminal procedure Law in 1996 has made great progress in the system of lawyers' right to defense, but due to the limitations of the times, There are still many problems in legislation. When the Law of lawyers was amended in 2007, there were some breakthroughs in the right of lawyers to see, the right to read papers, the right to investigate and obtain evidence, but there was an urgent need to integrate with the provisions of the 1996 Criminal procedure Law. The revision of the Criminal procedure Law absorbs the progressive and mature ideas and experiences in the Law of lawyers, pays attention to the connection with the Law of lawyers, and modifies and perfects the right of lawyers to defend in the light of the reality of China. However, the defects and progress follow each other, and the introduction of relevant legislation has failed to eradicate the defects in the system, which still affect and restrict the role of lawyers in defense. Through three real cases encountered by the author in his work, this paper reveals the institutional defects of lawyers' right to defense from three aspects: the right to meet, the right to read papers and the right to investigate and obtain evidence. This paper analyzes the causes of the defects and puts forward some suggestions for the revision and improvement of these defects, hoping to make up for these defects in the future legislation.
【学位授予单位】：黑龙江大学
【学位级别】：硕士
【学位授予年份】：2012
【分类号】：D926.5
本文编号：2473070
[Abstract]:Nowadays, there are two main litigation modes in the world: first, the civil law countries emphasize the role of prosecutors and judges in the process of litigation, and relatively dilute the functional litigation mode of the defense function of the accused; Second, the Anglo-American law system countries put more emphasis on the prosecutor, the defendant led the proceedings, emphasizing the equality of litigation and defense, the confrontation between prosecution and defense, and the neutral mode of adversarial litigation. The current criminal trial mode in our country is similar to the functional litigation mode in civil law countries. The three parties of prosecution, defense and trial have formed a stable triangular support of equality of prosecution and defense and central decision of judges. However, in fact, to a certain extent, the criminal trial mode of our country has the defects of charge, trial, and the imbalance of prosecution and defense power. Therefore, giving lawyers greater right to defend is an important measure to realize the equality of prosecution and defense in criminal proceedings, and plays an important role in safeguarding the legitimate rights and interests of criminal suspects and defendants and ensuring judicial justice to the maximum extent according to facts and laws. However, the effective realization of lawyers' right to defense depends not only on the legislative provisions, but also on whether they can be truly implemented in practice. The United Nations basic principles on the role of lawyers have formulated a series of provisions to protect the right of lawyers to defense, forming an international standard for the protection of lawyers' right to defence. Although it does not have the effect of enforcement, it has been recognized and followed by many countries. Our country is also constantly committed to safeguarding and improving the right to defense of lawyers. Since the restoration of the lawyer system in 1979, The system of lawyers' right to defense in our country has been continuously developed and perfected. The revision of the Criminal procedure Law in 1996 has made great progress in the system of lawyers' right to defense, but due to the limitations of the times, There are still many problems in legislation. When the Law of lawyers was amended in 2007, there were some breakthroughs in the right of lawyers to see, the right to read papers, the right to investigate and obtain evidence, but there was an urgent need to integrate with the provisions of the 1996 Criminal procedure Law. The revision of the Criminal procedure Law absorbs the progressive and mature ideas and experiences in the Law of lawyers, pays attention to the connection with the Law of lawyers, and modifies and perfects the right of lawyers to defend in the light of the reality of China. However, the defects and progress follow each other, and the introduction of relevant legislation has failed to eradicate the defects in the system, which still affect and restrict the role of lawyers in defense. Through three real cases encountered by the author in his work, this paper reveals the institutional defects of lawyers' right to defense from three aspects: the right to meet, the right to read papers and the right to investigate and obtain evidence. This paper analyzes the causes of the defects and puts forward some suggestions for the revision and improvement of these defects, hoping to make up for these defects in the future legislation.
【学位授予单位】：黑龙江大学
【学位级别】：硕士
【学位授予年份】：2012
【分类号】：D926.5
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