刍议律师在场制度的本土化建构

发布时间：2018-04-26 12:13

本文选题：在场权 + 律师　；参考：《深圳大学》2017年硕士论文

【摘要】：律师在场权是辩护权的内容之一,本质是对公权力的制约。讯问时律师在场是人权保障理论的要求,然而我国新修订的《刑事诉讼法》以及正在进行的刑事诉讼制度改革并没有提出律师在场权的概念。律师在场权的价值在域外国家的实践以及我国部分地区的试点中已有体现,我国确立律师在场制度所面临的困难并不小,律师在场制度的本土化建构需要充分认识该制度的内涵以及该制度在我国的适应性问题。本文分为四个部分:第一部分厘清律师在场权的概念,该部分叙述了律师在场权的内涵、分类,对本文论述的律师在场权进行界定,还论述了律师在场权的理论依据,包括无罪推定理论、控辩平等理论、程序正义理论、人权保障理论。第二部分论述确立律师在场制度的必要性与可行性,该部分论述了律师在场制度在人权保障、司法公正、辩护制度、侦查讯问制度方面的价值,结合域外实践经验及我国国情分析我国确立律师在场制度的可行性。第三部分探讨我国确立律师在场制度所面临的困难,包括律师在场制度与诉讼效率、现有律师资源之间的矛盾以及律师的执业风险、侦查人员对制度的抵触心理问题。第四部分提出我国确立律师在场制度的构想,分为律师在场制度的设计以及律师在场制度的配套建设两个部分。该部分对我国律师在场制度的适用案件范围、律师在场的权利义务、律师在场的程序设置进行论述,对律师在场制度与录音录像制度、值班律师制度以及刑事辩护豁免制度的关系进行分析。
[Abstract]:The right of lawyer's presence is one of the contents of the right of defense, and its essence is the restriction of public power. The presence of lawyers during interrogation is a requirement of the theory of human rights protection. However, the newly revised Criminal procedure Law and the ongoing reform of the criminal procedure system in China have not put forward the concept of lawyer's right to be present. The value of lawyers' right to be present has been reflected in the practice of foreign countries and the pilot projects in some parts of our country. The difficulties faced by China in establishing the system of lawyer's presence are not small. The localization construction of lawyer presence system needs to fully understand the connotation of the system and the adaptability of the system in our country. This paper is divided into four parts: the first part clarifies the concept of lawyer's right to be present, narrates the connotation and classification of lawyer's right of presence, defines the right of lawyer's presence, and discusses the theoretical basis of lawyer's right of presence. It includes the theory of presumption of innocence, the theory of equality of prosecution and defense, the theory of procedural justice and the theory of human rights guarantee. The second part discusses the necessity and feasibility of establishing the system of lawyer's presence, and discusses the value of the system of lawyer's presence in the aspects of human rights protection, judicial justice, defense system, investigation and interrogation system. This paper analyzes the feasibility of establishing the system of lawyer's presence in our country in combination with overseas practical experience and our country's national conditions. The third part discusses the difficulties faced in establishing the system of lawyer's presence in our country, including the system of lawyer's presence and the efficiency of litigation, the contradiction between the existing lawyer's resources, the practicing risk of lawyer, and the psychological problem of the investigator's conflict with the system. The fourth part puts forward the conception of establishing the lawyer's presence system in our country, which is divided into two parts: the design of the lawyer's present system and the supporting construction of the lawyer's present system. This part discusses the scope of the case, the rights and obligations of the lawyer's presence, the procedure of the lawyer's presence, the system of the lawyer's presence and the system of audio and video recording. The relationship between duty lawyer system and criminal defense immunity system is analyzed.
【学位授予单位】：深圳大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D925.2

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