论律师会见权
发布时间：2018-09-18 16:40
【摘要】： 会见权既是律师一项重要权利,又是犯罪嫌疑人、被告人的一项重要权利。新律师法通过后,这一权利再次引起人们的关注,并引发激烈讨论。 律师会见权是指在刑事诉讼过程中,接受委托或法院指定的律师,自犯罪嫌疑人被侦查机关第一次讯问或者采取强制措施之日起,依法与犯罪嫌疑人、被告人会见交流的权利。律师会见权的内容表现为信息沟通、意见协商、法律帮助、辩护行为。律师会见权是律师辩护权的衍生权利,是辩护权行使的前提性权利；是律师的对抗性权利、防御性权利；既是律师的执业权利又是律师的诉讼权利。律师会见权的实现有利于保障人权,有利于实现诉讼正义,有利于保障律师依法独立执业、促进律师业健康发展,有利于加强对侦查机关等专门机关的监督,有利于实现司法和谐、促进和谐社会的实现。 我国刑事诉讼法、律师法、有关法规、司法解释等都对律师会见权有相关规定,这些规定有不协调之处,同时与世界上主要法治发达国家差距较大,需要改进。新律师法在律师会见权问题上的规定与旧律师法和刑事诉讼法相比有较大进步性,表现在：明确规定会见权是律师的法定权利；将律师介入刑事诉讼的时间再度提前；律师会见不需要经过批准；律师会见不被监听。但仍有不足,表现在：规定较为笼统,不少词语含义不清晰;与刑事诉讼法不协调；缺乏对律师会见权进行救济和对侵害律师会见权的行为进行制裁的规定。 实践中,律师会见障碍多、作用小、形式化、权利救济难。律师“会见难”主要表现在：侦查机关以涉及国家秘密拒绝会见；会见依法不需要批准的却被侦查机关要求要经过批准；侦查机关不及时安排会见；会见时间和次数受限制；会见时侦查机关派员在场监听；会见被限制谈话内容；会见条件差,达不到应有效果等等。律师“会见难”原因主要有：法律规定不统一、不协调；思想观念陈旧、落后；会见权立法先天不足；犯罪率居高不下,侦查水平低；控辩地位不平等,侦查机关权力较大；侦查权缺乏监督、制约,会见权缺乏救济；执法力度不够,对侵害律师会见权的行为处罚不到位等等。 解决律师“会见难”,保障律师会见权充分实现,应当从以下几个方面努力：1.转变诉讼观念,为律师会见权的完善提供思想保障：树立“无罪推定”理念；树立“以人为本”理念；树立“司法和谐”理念；树立正确、科学的侦查理念；树立科学的刑事诉讼目的观。2.完善法律规定,为律师会见权的完善法律保障：统一立法,将新《律师法》第33条规定进一步细化；在法律上明确赋予犯罪嫌疑人、被告人会见权；取消会见审批制度,明确规定安排律师与在押犯罪嫌疑人会见是侦查机关的义务；取消会见时侦查机关派员在场权,确立侦查机关告知义务,赋予律师秘密会见权和会见犯罪嫌疑人、被告人时享有录音、录像、拍照权；确立审前法律援助制度；完善证据制度；逐步确立沉默权制度。3.加大执法力度,为律师会见权的实现提供救济途径：组织公安司法人员学习新律师法,以便正确贯彻实施；设立律师会见权救济途径；依法处理侵害律师会见权的公安司法人员；建立多层次、多渠道的律师维权路径；充分利用公检法三机关在办理刑事案件中的相互制约机制；确立侦查机关在阻止律师依法会见的情况下所获得的口供不能作为定案的依据制度。4.建立配套措施,为律师会见权的实现创造条件：将看守所交由司法行政机关管理,改善看守所条件；提高侦查水平和侦查人员素质,加强对侦查人员的教育；加强对律师执业行为的监管；构建法律职业共同体等。
[Abstract]:The right of meeting is not only an important right of lawyers, but also an important right of criminal suspects and defendants. After the adoption of the new law on lawyers, this right has aroused people's attention again and aroused heated discussion.
The lawyer's right of meeting refers to the right of meeting and communicating with the criminal suspect and the defendant in accordance with the law from the day when the criminal suspect is first interrogated or taken compulsory measures by the investigating organ. The contents of the lawyer's right of meeting are information communication, opinion consultation, legal help and defense. The lawyer's right of meeting is the derivative right of the lawyer's right of defense and the premise right of the lawyer's right of defense. It is the adversarial right and defensive right of the lawyer. It is not only the lawyer's right of practice but also the lawyer's litigation right. The realization of the lawyer's right of meeting is beneficial to the protection of human rights, the realization of litigation justice and the protection of lawyers according to law. Independent practice, promote the healthy development of the lawyer industry, is conducive to strengthening the supervision of the investigation organs and other specialized agencies, is conducive to achieving judicial harmony, and promote the realization of a harmonious society.
China's Criminal Procedure Law, Lawyer Law, relevant laws and regulations, judicial interpretation and so on all have relevant provisions on lawyer's right to meet. These provisions are inconsistent, and at the same time, there is a big gap between China and the developed countries with the rule of law in the world. The provisions of the new Lawyer Law on lawyer's right to meet have made great progress compared with the old Lawyer Law and the Criminal Procedure Law. Sex, manifested in: clearly stipulate the right to meet is the legal right of lawyers; intervene in criminal proceedings of lawyers again in advance; lawyers meet need not be approved; lawyers meet not be monitored. The right to carry out relief and sanctions against the right to interview lawyers.
In practice, lawyers meet with many obstacles, small role, formalization, right relief is difficult. The main reasons for lawyers'difficulty in meeting are: inconsistent and inconsistent legal provisions; obsolete and backward ideas; inadequate legislation on the right to meet; high crime rate, low level of investigation; and no status of prosecution and defense. Equality, investigative organs have greater power; investigative power is lack of supervision, restriction, the right to meet lack of relief; law enforcement is not strong enough to infringe on the right to meet lawyers in place of punishment and so on.
To solve the problem of lawyers'meeting and ensure the full realization of lawyers' meeting right, we should make efforts from the following aspects: 1. To change the concept of litigation and provide ideological guarantee for the perfection of lawyers'meeting right: to establish the concept of "presumption of innocence"; to establish the concept of "people-oriented"; to establish the concept of "judicial harmony"; to establish a correct and scientific investigation. 2. Perfect the legal provisions to guarantee the lawyers'right to meet: unify the legislation, further refine the provisions of Article 33 of the new Lawyer Law; clearly endow the criminal suspect with the right of meeting the defendant in law; abolish the system of meeting and approving, and clearly stipulate the arrangement of lawyers and criminal suspects in custody. It is the duty of the investigation organ to meet a person; cancel the right of the investigation organ to send members to be present at the meeting, establish the duty of the investigation organ to inform, endow the lawyer with the right of secret meeting and meet the criminal suspect, and the defendant with the right of recording, video recording and photographing; establish the legal aid system before trial; improve the evidence system; gradually establish the right of silence system.3. Increase the license. The law provides remedies for the realization of lawyers'right to meet: organizing public security judicial personnel to study the new law so as to implement it correctly; establishing remedies for lawyers' right to meet; dealing with public security judicial personnel who infringe on lawyers'right to meet in accordance with the law; establishing multi-level and multi-channel path for lawyers' right to meet; making full use of the three machines of public prosecution law To establish the system that the testimony obtained by the investigating organ under the condition of preventing the lawyer from meeting according to law can not be used as the basis for deciding the case. 4. To establish the supporting measures to create conditions for the realization of the lawyer's right to meet: to transfer the detention house to the judicial administrative organ to improve the conditions of the detention house; Investigation level and quality of investigators, strengthen the education of investigators, strengthen the supervision of lawyers'practice, and build a legal professional community.
【学位授予单位】：海南大学
【学位级别】：硕士
【学位授予年份】：2010
【分类号】：D925.2
本文编号：2248507
[Abstract]:The right of meeting is not only an important right of lawyers, but also an important right of criminal suspects and defendants. After the adoption of the new law on lawyers, this right has aroused people's attention again and aroused heated discussion.
The lawyer's right of meeting refers to the right of meeting and communicating with the criminal suspect and the defendant in accordance with the law from the day when the criminal suspect is first interrogated or taken compulsory measures by the investigating organ. The contents of the lawyer's right of meeting are information communication, opinion consultation, legal help and defense. The lawyer's right of meeting is the derivative right of the lawyer's right of defense and the premise right of the lawyer's right of defense. It is the adversarial right and defensive right of the lawyer. It is not only the lawyer's right of practice but also the lawyer's litigation right. The realization of the lawyer's right of meeting is beneficial to the protection of human rights, the realization of litigation justice and the protection of lawyers according to law. Independent practice, promote the healthy development of the lawyer industry, is conducive to strengthening the supervision of the investigation organs and other specialized agencies, is conducive to achieving judicial harmony, and promote the realization of a harmonious society.
China's Criminal Procedure Law, Lawyer Law, relevant laws and regulations, judicial interpretation and so on all have relevant provisions on lawyer's right to meet. These provisions are inconsistent, and at the same time, there is a big gap between China and the developed countries with the rule of law in the world. The provisions of the new Lawyer Law on lawyer's right to meet have made great progress compared with the old Lawyer Law and the Criminal Procedure Law. Sex, manifested in: clearly stipulate the right to meet is the legal right of lawyers; intervene in criminal proceedings of lawyers again in advance; lawyers meet need not be approved; lawyers meet not be monitored. The right to carry out relief and sanctions against the right to interview lawyers.
In practice, lawyers meet with many obstacles, small role, formalization, right relief is difficult. The main reasons for lawyers'difficulty in meeting are: inconsistent and inconsistent legal provisions; obsolete and backward ideas; inadequate legislation on the right to meet; high crime rate, low level of investigation; and no status of prosecution and defense. Equality, investigative organs have greater power; investigative power is lack of supervision, restriction, the right to meet lack of relief; law enforcement is not strong enough to infringe on the right to meet lawyers in place of punishment and so on.
To solve the problem of lawyers'meeting and ensure the full realization of lawyers' meeting right, we should make efforts from the following aspects: 1. To change the concept of litigation and provide ideological guarantee for the perfection of lawyers'meeting right: to establish the concept of "presumption of innocence"; to establish the concept of "people-oriented"; to establish the concept of "judicial harmony"; to establish a correct and scientific investigation. 2. Perfect the legal provisions to guarantee the lawyers'right to meet: unify the legislation, further refine the provisions of Article 33 of the new Lawyer Law; clearly endow the criminal suspect with the right of meeting the defendant in law; abolish the system of meeting and approving, and clearly stipulate the arrangement of lawyers and criminal suspects in custody. It is the duty of the investigation organ to meet a person; cancel the right of the investigation organ to send members to be present at the meeting, establish the duty of the investigation organ to inform, endow the lawyer with the right of secret meeting and meet the criminal suspect, and the defendant with the right of recording, video recording and photographing; establish the legal aid system before trial; improve the evidence system; gradually establish the right of silence system.3. Increase the license. The law provides remedies for the realization of lawyers'right to meet: organizing public security judicial personnel to study the new law so as to implement it correctly; establishing remedies for lawyers' right to meet; dealing with public security judicial personnel who infringe on lawyers'right to meet in accordance with the law; establishing multi-level and multi-channel path for lawyers' right to meet; making full use of the three machines of public prosecution law To establish the system that the testimony obtained by the investigating organ under the condition of preventing the lawyer from meeting according to law can not be used as the basis for deciding the case. 4. To establish the supporting measures to create conditions for the realization of the lawyer's right to meet: to transfer the detention house to the judicial administrative organ to improve the conditions of the detention house; Investigation level and quality of investigators, strengthen the education of investigators, strengthen the supervision of lawyers'practice, and build a legal professional community.
【学位授予单位】：海南大学
【学位级别】：硕士
【学位授予年份】：2010
【分类号】：D925.2
【引证文献】
相关硕士学位论文 前1条
1 刘辉;刑事诉讼律师会见权研究[D];山东大学;2013年
，本文编号：2248507
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