刑事辩护律师执业困境及其应对措施研究

发布时间：2019-05-10 14:22

【摘要】：律师在现代法治社会的构建中起着不可替代的作用,随着法治的进程,律师完成了从“国家人”到“社会人”的转变。刑事辩护律师因其职业的特殊性,始终受到社会的普遍关注,但是目前我国律师制度的建设却难尽如人意。本文对刑事辩护律师执业风险及其保障措施的研究,是从辩护律师的最基础性问题着手,首先阐述了辩护律师的职业特点,随之论述了刑事辩护律师在当前新形势下的重要使命,然后将国外法治发达国家的刑事辩护律师执业保障规定加以具体说明。之后阐明了我国当前刑事辩护律师的执业困境,主要体现在两个方面:一是由于法律规定的不够完善,尤其《刑法》第306条的规定,给律师执业带来极大的法律风险。同时,由于制度层面的原因使辩护律师长期处于法律体系的边缘,造成辩护律师在刑辩中会见难、取证难、辩护难;二是由于社会公众对辩护律师职业的误解,使律师面临诸多的执业风险。探其原因,不难发现,这其中既有我国传统法律文化方面的因素,也有立法方面的缺失及制度方面的缺陷,另外,律师队伍自身的不足也是一个重要的原因。要从根本上解决辩护律师的执业困境最重要的是要完善对辩护律师权利的保障措施。首先,通过提高执业门槛和规范律师管理体制提高律师自身的职业素质;其次,因辩护律师职业的特殊性要赋予律师一定的职业特权,如保守秘密的特权和职业豁免权;第三,针对《刑法》第306条的缺陷,对该条规定加以修改完善,从立法上对律师的权利加以保障;最后,要进一步完善程序性制裁的相关规定,在程序上对侵犯辩护律师的诉讼权利的行为予以制裁。
[Abstract]:Lawyers play an irreplaceable role in the construction of modern society ruled by law. With the process of rule of law, lawyers have completed the transformation from "national people" to "social people". Because of the particularity of their profession, the criminal defense lawyer has always been paid more and more attention by the society, but the construction of the lawyer system in our country is not satisfactory at present. In this paper, the study of the practice risk of criminal defense lawyers and its safeguard measures is based on the most basic problems of defense lawyers, and first expounds the professional characteristics of defense lawyers. Then it discusses the important mission of criminal defense counsel in the current new situation, and then specifies the regulations on the practice guarantee of criminal defense counsel in developed countries ruled by law in foreign countries. Then it expounds the current predicament of criminal defense lawyers in our country, which is mainly reflected in two aspects: one is that the legal provisions are not perfect, especially the provisions of Article 306 of the Criminal Law, which bring great legal risks to the practice of lawyers. At the same time, because of the institutional reasons, the defense lawyers are on the verge of the legal system for a long time, which makes it difficult for the defense lawyers to meet in the criminal defense, to obtain evidence and to defend. Second, due to the public misunderstanding of the defense lawyer profession, lawyers face a lot of practice risks. To explore the reasons, it is not difficult to find that there are not only the traditional legal culture of our country, but also the lack of legislation and the defects of the system. In addition, the shortcomings of the lawyers themselves are also an important reason. In order to fundamentally solve the dilemma of defense lawyers, the most important thing is to improve the protection measures of defense lawyers' rights. First of all, we should improve the professional quality of lawyers by improving the threshold of practice and standardizing the management system of lawyers. Secondly, because of the particularity of the profession of defense lawyers, lawyers should be given certain professional privileges, such as the privilege of keeping secrets and professional immunity. Third, in view of the defects of Article 306 of the Criminal Law, the provisions of this article are amended and perfected to protect the rights of lawyers in legislation. Finally, it is necessary to further improve the relevant provisions of procedural sanctions, and impose sanctions on violations of the litigation rights of defense lawyers.
【学位授予单位】：烟台大学
【学位级别】：硕士
【学位授予年份】：2011
【分类号】：D926.5

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