辩护律师被驱逐出庭的程序法理思考

发布时间：2018-03-27 22:04

本文选题：律师　切入点：驱逐出庭　出处：《郑州大学学报(哲学社会科学版)》2013年01期

【摘要】：近年来全国各地屡屡发生辩护律师被法官驱逐出庭的事件,这看似是一个律师不服从法官指挥、违反法庭纪律的小问题,但其折射出的是律师辩护意见不受尊重、辩护权利缺乏保障以及法院中立性不足、控辩失衡等深层问题。律师被驱逐出庭无论是对律师的职业尊严还是对被告人辩护权的实现都会产生较大的影响,因此在适用时应遵循区别对待原则、慎用原则和比例原则,并在上述原则指导下构建驱逐律师出庭的正当法律程序,以防范法官自由裁量权的滥用。律师被驱逐出庭还会带来一系列法律问题:一是被驱逐的律师能否重返法庭继续参与本案的辩护?二是被告人是否有权委托新的辩护人?三是被驱逐律师能否在裁判文书上列名?这些问题法律上都不明确,实践中各行其是,亟待予以规范。
[Abstract]:In recent years, there have been repeated incidents in which defence lawyers have been expelled from court by judges throughout the country. This seems to be a minor problem of lawyers disobeying the orders of judges and violating the discipline of the courts, but it reflects the lack of respect for lawyers' defence opinions. The lack of protection of the right of defense, the lack of neutrality of the court, the imbalance between the prosecution and the defence, and so on. The expulsion of a lawyer to appear in court will have a great impact on the professional dignity of the lawyer and the realization of the defendant's right to defense. Therefore, the principle of differential treatment, the principle of proportion and the principle of proportion should be followed when applied, and under the guidance of the above principles, the due process of law for expelling counsel should be established. In order to prevent the abuse of the judge's discretion, the expulsion of a lawyer in court also raises a series of legal questions: first, can the expelled lawyer return to the court and continue to participate in the defence of the case? Second, does the defendant have the right to entrust a new defender? Third, can the expelled lawyer be listed in the decision document? These problems are not clear on the law, the practice of their own, need to be standardized.
【作者单位】：四川省社会科学院法学研究所;
【分类号】：D926.5

【共引文献】