美国无效辩护救济程序及其对我国的启示
发布时间：2018-10-09 15:38
【摘要】：美国宪法第六修正案明确规定了被告人有获得律师帮助的权利,早期对其的解读为单纯的有律师帮助,后来随着现代刑事诉讼的发展,对辩护质量的重视程度日益加深,其由单纯的有律师辩护转变为有律师有效的辩护。律师的辩护既然有有效辩护,那么也就必然存在无效辩护,无效辩护产生的原因是:政府或法院的不当干涉、律师不称职的辩护或者存在利益冲突等。在美国通过一系列的判例最终确立了无效辩护制度,无效辩护制度是一种刑事诉讼程序范围内的权利救济方式,它通过无效辩护救济程序实现权利的救济。无效辩护救济的理由为辩护中存在“行为瑕疵”,辩护导致了“不利结果”。在美国被告人可以通过上诉审前动议、直接上诉或间接审查程序三种途径进行救济,首先由被告人提起无效辩护的申请,然后证明自己遭受无效辩护行为,并为此承担了不利结果,最终法院会对其申请进行审查,若认可其申请,便会撤销原判或发回重审。无效辩护救济程序的设立为辩护权遭到律师侵害的被告人提供了救济的机会,其目的不是为了惩戒律师,而是为了保证被告人获得公正的审判。美国无效辩护救济程序的设立对保障被告人的辩护权,提高律师的辩护质量,确保审判的公正具有积极的意义。但是由于审查规则制定的过高,证明责任负担的过重,也使得法院在一般情形下很难认可无效辩护行为。我国现阶段还没有关于无效辩护的救济程序,通过对美国无效辩护救济程序的介绍分析,以及从加强被告人辩护权保障和改善我国现在刑事辩护的需要,我们可以借鉴美国的无效辩护救济程序,设立我国的无效辩护救济程序。我国当前刑事辩护率较低,所以在设计我国无效辩护救济程序之时要结合这一国情,既不会挫伤律师辩护的积极性,又能够保障被告人的辩护权利。被告人可以无效辩护为理由直接提起上诉或者发起审判监督程序。证明责任方面由被告人承担遭受无效辩护行为的证明,辩护律师则承担其行为没有造成不利结果的证明。法院在审查时可以设立一个听证程序,给予双方举证说明、辩论的机会,最终确认是否存在无效辩护的行为,保证审判结果的公正。
[Abstract]:The sixth Amendment of the Constitution of the United States clearly stipulates that the accused has the right to be assisted by a lawyer, which was interpreted as simple with the help of a lawyer at the early stage. Later, with the development of modern criminal proceedings, the emphasis on the quality of defense has been deepened day by day. It changes from a simple lawyer's defense to an effective one. Since a lawyer's defense has an effective defense, there must be an invalid defense. The causes of the invalid defense are the improper intervention of the government or the court, the incompetent defense of the lawyer or the existence of conflicts of interest. In the United States, the system of invalid defense was finally established through a series of precedents. The system of invalid defense is a kind of right relief within the scope of criminal procedure, and it realizes the relief of right through the procedure of invalid defense. The reason of invalid defense remedy is that there are "behavioral defects" in the defense, and the defense leads to "unfavorable result". In the United States, a defendant can provide relief through a pretrial motion, a direct appeal or an indirect review procedure. First, an application for invalidity is filed by the defendant, and then he proves that he has suffered an invalid defence. In the end, the court will review the application, and if it approves the application, it will rescind the decision or return it to the court. The establishment of the procedure of invalid defense relief provides an opportunity for the defendant whose right of defense has been infringed by the lawyer. The purpose of the procedure is not to discipline the lawyer, but to ensure the defendant to obtain a fair trial. The establishment of the invalid defense relief procedure in the United States is of positive significance to the protection of the defendant's right to defence, to the improvement of the defense quality of the lawyer and to the fairness of the trial. However, it is difficult for the court to approve the invalid defense under normal circumstances because of the overburden of burden of proof. At the present stage, there is no relief procedure for invalid defense in our country. Through the introduction and analysis of the relief procedure for invalid defense in the United States, and the need to strengthen the defense right of the accused and improve the present criminal defense in our country, We can draw lessons from the invalid defense relief procedure of the United States and set up the invalid defense relief procedure of our country. At present, the rate of criminal defense in our country is relatively low, so when designing the procedure of invalid defense relief in our country, we should combine this situation, which will not dampen the enthusiasm of lawyer's defense, but also can protect the defendant's defense right. The defendant may appeal directly on the ground of invalidation of the defence or initiate trial supervision proceedings. In terms of burden of proof, the defendant bears the proof that the defendant has suffered the invalid defense act, while the defense lawyer bears the proof that the act has no adverse result. The court may, at the time of examination, establish a hearing procedure that gives both parties the opportunity to present evidence, argue, and ultimately confirm the existence of an invalid defence and guarantee the fairness of the trial result.
【学位授予单位】：湘潭大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D971.2;DD915.3;D925.2
本文编号：2259860
[Abstract]:The sixth Amendment of the Constitution of the United States clearly stipulates that the accused has the right to be assisted by a lawyer, which was interpreted as simple with the help of a lawyer at the early stage. Later, with the development of modern criminal proceedings, the emphasis on the quality of defense has been deepened day by day. It changes from a simple lawyer's defense to an effective one. Since a lawyer's defense has an effective defense, there must be an invalid defense. The causes of the invalid defense are the improper intervention of the government or the court, the incompetent defense of the lawyer or the existence of conflicts of interest. In the United States, the system of invalid defense was finally established through a series of precedents. The system of invalid defense is a kind of right relief within the scope of criminal procedure, and it realizes the relief of right through the procedure of invalid defense. The reason of invalid defense remedy is that there are "behavioral defects" in the defense, and the defense leads to "unfavorable result". In the United States, a defendant can provide relief through a pretrial motion, a direct appeal or an indirect review procedure. First, an application for invalidity is filed by the defendant, and then he proves that he has suffered an invalid defence. In the end, the court will review the application, and if it approves the application, it will rescind the decision or return it to the court. The establishment of the procedure of invalid defense relief provides an opportunity for the defendant whose right of defense has been infringed by the lawyer. The purpose of the procedure is not to discipline the lawyer, but to ensure the defendant to obtain a fair trial. The establishment of the invalid defense relief procedure in the United States is of positive significance to the protection of the defendant's right to defence, to the improvement of the defense quality of the lawyer and to the fairness of the trial. However, it is difficult for the court to approve the invalid defense under normal circumstances because of the overburden of burden of proof. At the present stage, there is no relief procedure for invalid defense in our country. Through the introduction and analysis of the relief procedure for invalid defense in the United States, and the need to strengthen the defense right of the accused and improve the present criminal defense in our country, We can draw lessons from the invalid defense relief procedure of the United States and set up the invalid defense relief procedure of our country. At present, the rate of criminal defense in our country is relatively low, so when designing the procedure of invalid defense relief in our country, we should combine this situation, which will not dampen the enthusiasm of lawyer's defense, but also can protect the defendant's defense right. The defendant may appeal directly on the ground of invalidation of the defence or initiate trial supervision proceedings. In terms of burden of proof, the defendant bears the proof that the defendant has suffered the invalid defense act, while the defense lawyer bears the proof that the act has no adverse result. The court may, at the time of examination, establish a hearing procedure that gives both parties the opportunity to present evidence, argue, and ultimately confirm the existence of an invalid defence and guarantee the fairness of the trial result.
【学位授予单位】：湘潭大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D971.2;DD915.3;D925.2
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