论我国侦查讯问程序中律师在场权的确立
发布时间：2018-10-19 20:25
【摘要】： 本文共五部分，三万余字。 第一部分是律师在场权的基本理论研究。首先，，就律师在场权的起源与内涵进行了介绍。然后，从权力制约、人权保障、有效辩护和程序公正四方面分析了确立律师在场权的法理基础。 第二部分分析我国律师在场权的缺失及其原因。认为我国存在立法和司法理念的双重缺失，从我国侦查实践中对口供的过分依赖、传统法制观念中人权保障理念的缺乏以及正当程序理念的缺乏三方面分析了我国律师在场权缺失的原因。 第三部分论述了律师在场权的必要性和可行性。认为律师在场权是弥补侦查程序结构性缺陷、实现司法公正、构建和谐社会和适应国际化与全球化发展的需要。并从观念层面、制度层面和操作层面三个角度论证了我国确立律师在场权的可行性。 第四部分是关于律师在场权的比较考察。该部分选取了英美法系中的美国、英国、澳大利亚，大陆法系中的德国、法国、意大利，我国台湾和香港地区以及欧洲人权法院、国际公约等作为考察对象，通过研究这些国家、国际组织和地区律师在场权的立法规定与司法实践，为我国律师在场权的确立提供比较与借鉴。 第五部分是确立我国律师在场权的制度构想。第一、确立我国律师在场权的核心问题。包括律师在场权适用的案件范围、设置模式以及在场律师的权利和义务。第二、立法建议。从律师在场权的行使程序、讯问条件和救济程序三方面提出立法建议。第三、需要完善的相关问题。建立独立于侦查权之外的独立羁押管理体制和严格的非法言词证据排除规则。
[Abstract]:This article has five parts, more than 30,000 words. The first part is the basic theoretical research of lawyer's right to be present. First of all, the author introduces the origin and connotation of lawyer's right to be present. Then, it analyzes the legal basis of establishing lawyer's right to be present from four aspects: power restriction, human rights guarantee, effective defense and procedural justice. The second part analyzes the absence and reasons of lawyers' right to be present in our country. The author thinks that there is a double lack of legislation and judicial idea in our country, and that there is too much reliance on confession in the investigation practice of our country. The lack of the concept of human rights protection and the lack of the concept of due process in the traditional concept of legal system have analyzed the reasons for the absence of the right of lawyers to be present in our country. The third part discusses the necessity and feasibility of lawyer's right to be present. The author holds that the right of lawyer's presence is necessary to make up for the structural defects of investigation procedure, to realize judicial justice, to construct a harmonious society and to adapt to the development of internationalization and globalization. At the same time, the feasibility of establishing lawyer's right to be present in our country is proved from three aspects: concept, system and operation. The fourth part is about the comparative investigation of lawyer's right to be present. In this part, the United States, Britain, Australia, Germany, France, Italy, Taiwan and Hong Kong, as well as the European Court of Human Rights and international conventions in the common law system are selected as the objects of investigation. By studying the legislative provisions and judicial practice of lawyers' right to be present in these countries, international organizations and regions, this paper provides a comparison and reference for the establishment of lawyers' right to be present in our country. The fifth part is to establish the system conception of the lawyer's right to be present in our country. First, establish the core problem of lawyer's right to be present in our country. It includes the scope of cases, the mode of setting up and the rights and obligations of lawyers. Second, legislative proposals. The legislative suggestions are put forward from three aspects: the exercise procedure of lawyer's right to be present, the condition of interrogation and the procedure of relief. Third, need to improve the relevant issues. Establish an independent custody management system independent of the investigation power and strict exclusionary rules of illegal verbal evidence.
【学位授予单位】：中南大学
【学位级别】：硕士
【学位授予年份】：2006
【分类号】：D918.5;D925.2
本文编号：2282265
[Abstract]:This article has five parts, more than 30,000 words. The first part is the basic theoretical research of lawyer's right to be present. First of all, the author introduces the origin and connotation of lawyer's right to be present. Then, it analyzes the legal basis of establishing lawyer's right to be present from four aspects: power restriction, human rights guarantee, effective defense and procedural justice. The second part analyzes the absence and reasons of lawyers' right to be present in our country. The author thinks that there is a double lack of legislation and judicial idea in our country, and that there is too much reliance on confession in the investigation practice of our country. The lack of the concept of human rights protection and the lack of the concept of due process in the traditional concept of legal system have analyzed the reasons for the absence of the right of lawyers to be present in our country. The third part discusses the necessity and feasibility of lawyer's right to be present. The author holds that the right of lawyer's presence is necessary to make up for the structural defects of investigation procedure, to realize judicial justice, to construct a harmonious society and to adapt to the development of internationalization and globalization. At the same time, the feasibility of establishing lawyer's right to be present in our country is proved from three aspects: concept, system and operation. The fourth part is about the comparative investigation of lawyer's right to be present. In this part, the United States, Britain, Australia, Germany, France, Italy, Taiwan and Hong Kong, as well as the European Court of Human Rights and international conventions in the common law system are selected as the objects of investigation. By studying the legislative provisions and judicial practice of lawyers' right to be present in these countries, international organizations and regions, this paper provides a comparison and reference for the establishment of lawyers' right to be present in our country. The fifth part is to establish the system conception of the lawyer's right to be present in our country. First, establish the core problem of lawyer's right to be present in our country. It includes the scope of cases, the mode of setting up and the rights and obligations of lawyers. Second, legislative proposals. The legislative suggestions are put forward from three aspects: the exercise procedure of lawyer's right to be present, the condition of interrogation and the procedure of relief. Third, need to improve the relevant issues. Establish an independent custody management system independent of the investigation power and strict exclusionary rules of illegal verbal evidence.
【学位授予单位】：中南大学
【学位级别】：硕士
【学位授予年份】：2006
【分类号】：D918.5;D925.2
【引证文献】
相关硕士学位论文 前3条
1 孙浩博;浅析刑事诉讼中的律师在场权[D];中国政法大学;2011年
2 张静静;我国律师执业权利保障研究[D];华中师范大学;2011年
3 侯太利;侦查讯问时律师在场权研究[D];中国政法大学;2010年
本文编号：2282265
本文链接：https://www.wllwen.com/shekelunwen/gongan/2282265.html
