律师意见不被采纳的原因、危害及对策研究

发布时间：2018-03-19 06:37

本文选题：律师意见　切入点：司法回应　出处：《西南政法大学》2012年硕士论文　论文类型：学位论文

【摘要】：律师制度是司法公正的重要保障机制，律师意见在司法判决中得到有效回应是律师在诉讼中发挥作用的重要体现。法律虽然赋予了律师以辩护权，但对于庭审中未回应律师辩护意见或者代理意见时，并不存在相应的救济机制。这是一个重大的制度缺陷，对司法公正会产生重要影响。律师意见不被回应，既有法律制度上的缺失，也有法官的观念因素，在一定程度上是律师地位不对等的体现。律师意见不被回应，不利于提高律师的法律执业能力。当事人主要关注律师与法官的私人关系，而不是其执业能力，，促使律师更注重维系与法官的私人关系；律师意见不被回应的最大危害还在于，它会造成司法对公正的背离，导致一些枉法裁判或者误判，不能形成司法过程的权力制衡机制，对法官公正司法失去有效的监督和制衡作用。而司法不公，必然危及社会稳定，很多涉诉信服不能说完全与此无关。要求法院对律师意见进行有效回应，对不予回应的充分说明理由，就成为司法过程中的重要诉求。在强化法院回应律师意见方面，一方面，要强化判决书的说理要求，对判决结论要进行法律和事实方面的论证，对律师意见不予采信时要说明理由；另一方面，可以从制度上创设一项律师意见不被回应的审查请求权，作为一项救济性权利，以确保律师辩护权的实现，有效维护当事人的合法权益。同时，还可以参照国外和我国香港地区的相关制度，设置律师意见不被回应时的独立上诉权，这是保证律师作用有效实现的重要制度机制。通过强化律师意见对司法判决的影响力，能够达成司法过程的制衡效应，实现司法公正，保障公民的合法权利；同时能够促进律师行业的良性竞争和健康发展，提升律师的执业能力及其法律素养，对我国诉讼制度的完善也具有重要意义。
[Abstract]:The lawyer system is an important safeguard mechanism of judicial justice. The effective response of lawyer's opinion in judicial judgment is an important embodiment of the lawyer's role in the lawsuit. Although the law gives lawyers the right to defend, However, there is no corresponding relief mechanism when counsel's defense opinion or representation opinion is not answered in court, which is a major institutional defect and will have an important impact on judicial justice. The lawyer's opinion is not responded to, not only because of the lack of legal system, but also because of the concept factor of judge, which to a certain extent reflects the unequal status of lawyer, and the lawyer's opinion is not answered. It is not conducive to improving the legal practice ability of lawyers. The parties mainly focus on the private relationship between lawyers and judges, rather than on their ability to practise, which urges lawyers to pay more attention to maintaining personal relations with judges. The greatest danger of lawyers' opinions not being answered is that, It will cause judicial deviations from justice, lead to some judicial perversion or misjudgment, fail to form the power balance mechanism in the judicial process, and lose the effective supervision and check and balance function to the just administration of justice of the judge. And the unfair administration of justice will inevitably endanger the stability of the society. Many litigant persuasion cannot be said to have nothing to do with this at all. Requiring the court to respond effectively to counsel's opinion and to fully explain the reasons for not responding becomes an important demand in the judicial process. With regard to strengthening the court's response to counsel's opinions, on the one hand, it is necessary to strengthen the reasoning requirements of the judgment, to demonstrate the legal and factual aspects of the conclusion of the judgment, and to explain the reasons when the lawyer's opinion is not accepted; on the other hand, We can create a right of review and request that lawyers' opinions are not responded to, as a relief right, to ensure the realization of lawyers' right of defense, and to effectively safeguard the legitimate rights and interests of the parties. It is also possible to set up the independent right of appeal when lawyers' opinions are not answered by referring to the relevant systems in foreign countries and Hong Kong, which is an important institutional mechanism to ensure the effective realization of lawyers' role. By strengthening the influence of lawyers' opinions on judicial decisions, we can achieve the checks and balances in the judicial process, realize judicial justice, safeguard the legal rights of citizens, and promote the healthy competition and healthy development of the lawyer industry. It is also of great significance to improve the practice ability and legal literacy of lawyers in our country.
【学位授予单位】：西南政法大学
【学位级别】：硕士
【学位授予年份】：2012
【分类号】：D926.5

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