论律师作证特免权制度

发布时间：2018-02-10 20:11

本文关键词： 律师作证特免权功利主义隐私权正当性分析秘密性例外　出处：《中国政法大学》2011年硕士论文　论文类型：学位论文

【摘要】：源于中国春秋时期的“亲亲相隐”制度,封建制度下的“容隐”制体现了人们对于亲情伦理这些特殊社会关系的重视。与其让犯罪嫌疑人的家属作证,提供一些证明力不高的证言,还不如免去他们的作证义务,保护犯罪嫌疑人与家人之间的关系。随着历史的流逝,社会在不断发展,法治也在步步向前,在权衡律师与委托人之间的信赖关系和国家追求案件事实真相的司法目的之间,律师作证特免权的权利体现了国家对于律师与委托人之间信赖关系的重视,宁愿以无法惩罚犯罪的代价,来换取律师与委托人之间信赖对方而无障碍地交流。很难想象还有什么比特免权制度更能阻止案件真实的发现,律师作证特免权让国家公诉机关不得不“舍近求远”,无法从律师身上获得犯罪嫌疑人的罪证,但是律师作证特免权保护了不仅仅是被告人,更重要的是让委托人可以相信律师,对律师坦诚一切,以换取律师专业的法律服务,实现委托人不自证其罪和获得律师帮助的宪法权利。本文通过对英美法系的律师作证特免权制度的介绍,概括介绍特免权制度的历史,对律师作证特免权进行界定,同时分析律师作证特免权制度的理论基础,通过考察不同的理论和质疑的声音,详细分析律师作证特免权制度正当性。接着参照英美法的案例和经典论著,从主体、客体、权利的放弃和例外对律师作证特免权制度进行全面的阐述,分析我国律师作证特免权制度的缺陷,论述完善律师作证特免权制度的必要性,提出律师作证特免权制度在中国的完善建议。本文第一章对特免权制度作一个简单的介绍,对于英美律师作证特免权制度的立法背景和立法进程进行概括,同时通过对律师工作成果、律师职业豁免权和律师职业道德的对比,厘定律师作证特免权的概念和内涵。第二章介绍支持律师作证特免权制度的两种重要理论——功利主义理论和隐私权理论,同时吸收对律师作证特免权制度质疑的相关观点,提炼分析律师作证特免权制度的正当性。第三章参照英美法国家的案例和专著,从律师作证特免权制度的主体、客体、权利的放弃和例外对律师作证特免权进行一个全面的介绍和阐述,试图给出一个标准的律师作证特免权制度。第四章分析当前中国法律规定的律师保密义务,论证完善律师作证特免权制度的必要性,介绍完善律师作证特免权制度的障碍,对完善律师作证特免权制度提出建议。最后得出的结论为:我国仅规定律师保密义务,要不断完善律师作证特免权制度。结合中国的国情和实际,培养中国律师作证特免权存在所必须的文化土壤,建立相关的配套制度,才能建立完善的律师作证特免权制度。
[Abstract]:Originated from the "closeness" system of the Spring and Autumn period in China, the "concealment" system under the feudal system reflects the importance people attach to the special social relations of kinship ethics. It is better to absolve them of their duty to testify and to protect the relationship between suspects and their families. With the passage of history, society is constantly developing, and the rule of law is moving forward step by step. In the balance between the trust relationship between the lawyer and the client and the judicial purpose of the country pursuing the truth of the case, the lawyer's right to testify and exempt reflects the importance attached by the state to the trust relationship between the lawyer and the client. Would rather be able to punish the cost of crime, in return for lawyers and clients to trust each other without barriers to communication. It is difficult to imagine what more than the right to prevent the case from the true discovery, The power of lawyers to testify with special exemptions has forced the national public prosecution authorities to "take care of their own interests" and prevent them from obtaining the criminal suspects' evidence from lawyers. However, lawyers' power to testify with special exemptions protects not only the accused, but also, more importantly, enables clients to trust lawyers. To be honest with lawyers in exchange for professional legal services and to realize the constitutional right of clients not to testify against their crimes and to obtain the help of lawyers. In this paper, the author introduces the special exemption system of lawyers in Anglo-American law system, introduces the history of the special exemption system, defines the special exemption right of lawyers testifying, and analyzes the theoretical basis of the special exemption system of lawyers testifying at the same time. By examining different theories and voices of doubt, this paper analyzes in detail the legitimacy of the system of lawyers' privilege to testify, and then refers to the cases and classic works of Anglo-American law, from the subject, the object, The waiver and exception of the right to give up the right to testify by lawyers is an overall exposition of the system of privilege and exemption of lawyers, analyzes the defects of the system of privilege and exemption of lawyers testifying in our country, and discusses the necessity of perfecting the system of privilege and exemption for lawyers to testify. This paper puts forward some suggestions on how to perfect the system of lawyer's privilege of testifying in China. The first chapter of this paper makes a brief introduction to the privilege system, summarizes the legislative background and legislative process of the privilege system for the testifying of British and American lawyers, and at the same time, through the work of lawyers, By comparing the professional immunity of lawyers with the professional ethics of lawyers, this paper defines the concept and connotation of lawyers' privilege to testify. The second chapter introduces two important theories that support the privilege system of lawyers' testifying privilege-utilitarianism theory and privacy theory. At the same time, it absorbs the relevant views of questioning the system of lawyers' privilege to testify. Refining and analyzing the legitimacy of the system of lawyers' privilege to testify. The third chapter, referring to the cases and monographs of Anglo-American countries, gives a comprehensive introduction and exposition of lawyer's privilege to testify from the subject, object, right waiver and exception of lawyer's privilege to testify. Try to give a standard lawyer testifying privilege system. The 4th chapter analyzes the lawyer's duty to keep secret under the current Chinese law, demonstrates the necessity of perfecting the system of special exemption for lawyers to testify, and introduces the obstacles to perfecting the system of special exemption of lawyers' right to testify. This paper puts forward some suggestions on how to perfect the special exemption system of lawyers' right to testify. Finally, the conclusion is as follows: our country only prescribes the duty of confidentiality of lawyers, and we should constantly perfect the system of special exemption of lawyers' right to testify, which is based on the national conditions and the reality of China. Only by cultivating the cultural soil necessary for the existence of the privilege of Chinese lawyers to testify, and establishing relevant supporting systems, can we establish a perfect system of special exemption for lawyers to testify.
【学位授予单位】：中国政法大学
【学位级别】：硕士
【学位授予年份】：2011
【分类号】：D925.2;D926.5

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