审查逮捕阶段律师参与情况实证研究

发布时间：2018-05-20 07:00

本文选题：审查逮捕阶段 + 律师参与　；参考：《西南政法大学》2015年硕士论文

【摘要】：2012年《刑事诉讼法》和2014年《最高人民检察院关于依法保障律师执业权利的规定》为律师参与审查逮捕程序提供了法律上的支持和保障。律师参与审查逮捕程序,体现了司法公正、司法效率的理念。由于我国的立法刚刚起步,各项规定比较粗糙,其中有一些规定仅仅具有实践指导意义,缺乏可操作性。尽管某些地方探索了一些律师参与审查逮捕程序的方法,也取得一定实效,但是这一新生机制在实践中仍然处于试水阶段。律师是否参与审查逮捕程序,参与情况如何,在一定程度上关系到当事人的合法权益是否得到有效保护,保护的程度如何,最终关系到司法公正和司法效率的实现。为此,有必要对其进行深入而全面的考察和分析。本文采用实证调研的方式,针对律师参与的总体状况和参与模式进行具体考察,发现律师参与审查逮捕阶段的一些问题并分析其原因。据此,结合理论和实践提出一些完善建议,探索适合我国的律师参与审查逮捕程序的运行模式。本文除引言和结语外,包括四个部分:第一部分论述审查逮捕阶段律师参与制度的基本理论。分别从程序公正、实体公正、司法效率三个方面评判律师参与审查逮捕阶段的理论价值。首先,律师参与审查逮捕阶段,增加了审查逮捕程序的透明性,逮捕决定将以看的见的方式作出。其次,律师参与后,检察机关可以兼听则明做出正确的逮捕决定。最后,律师参与后,可以帮助检察关机尽早发现问题,提升审查效率,并且可以避免启动后续程序,减少申诉、上访的案件数,避免司法资源浪费。第二部分采用实证调研的方式对C市B区、J区基层人民检察院律师参与审查逮捕阶段的情况进行全面考察。首先考察审查逮捕阶段律师参与情况的总体状况。包括律师参与的案件总数、律师参与的方式、律师参与的案件类型、律师参与对逮捕制度的影响、检察官对律师参与的态度、律师在司法实践中的做法这六个方面。通过调研发现,律师参与制度总体运行效果不佳。虽然律师参与的案件类型广泛,但是总体参与案件的比例较低,对最终逮捕决定的影响不大。加之某些检察官和律师没有充分认识到该制度的重要性,不支持或不愿意提前介入诉讼程序,使该制度在一定程度上被架空。接着,深入考察律师参与审查逮捕阶段的具体模式,一种是公开听取律师意见模式,一种是细化听取律师意见模式,无论采取哪种模式,听取律师意见都是必不可少的环节。第三部分立足实证考察结果,发现律师参与审查逮捕阶段的问题主要是律师参与案件比例低、法律援助方式介入难、律师参与对逮捕结果影响不大、检察官和律师存在隔阂、律师提出辩护意见质量不高等。这些问题的出现阻碍律师参与制度的运行,造成运行效果不佳的原因主要有以下几方面:一是参与主体观念上的原因。某些犯罪嫌疑人不相信律师,不愿意委托律师;公安机关、检察机关的一些工作人员阻碍律师行使权利,不重视律师意见;律师往往不愿意过早介入诉讼程序。二是机制上的原因。律师参与审查逮捕程序缺乏统一的规定,没有明确规定听取律师意见的案件范围,也没有统一的告知、接收、审查处理程序,而且后续的救济程序缺失,总体操作性不强。三是其他方面的原因,包括法律援助不力,部分律师怠于履行职责甚至违规、违法操作等。第四部分根据调研中发现的问题对症下药,提出完善律师参与审查逮捕程序的建议。针对调研中发现的问题,首先从转变观念,提高审查逮捕阶段律师介入率入手。检察机关要重视律师意见,保持客观、中立立场;律师要提高参与意识;社会公众要提高法律意识,以构建良好的司法环境。其次,合理构建律师参与程序,明确听取律师意见的案件范围,建立和完善告知、听取、接收、审查处理、反馈说理程序,并建立一定的救济机制,保障律师参与程序的统一运行。再次,完善配套措施。这些措施主要包括,加强公安机关、检察机关、律师三者之间的信息交流与衔接,以保障律师及时介入审查逮捕程序;完善法律援助制度,保障犯罪嫌疑人及时得到律师的帮助;强化律师的权利,增强其辩护能力;同时还要加强对律师行为的监督制约,以确保律师正确履行职责。
[Abstract]:In 2012, the law of criminal procedure and the provisions of the Supreme People's Procuratorate on the protection of the rights of lawyers in accordance with the law in 2014 provide legal support and guarantee for lawyers to participate in the review and arrest procedures. Lawyers participate in the review and arrest procedure, which embodies the concept of judicial justice and judicial efficiency. The legislation has just started in China and the provisions are compared. There are some rules which have practical guiding significance and lack of maneuverability. Although some places have explored some ways for lawyers to participate in the review of arrest procedures, some results have been achieved. However, this new mechanism is still in the stage of trial water. The degree is related to the effective protection of the legitimate rights and interests of the parties, the extent to which the degree of protection is related to the realization of judicial justice and judicial efficiency. Therefore, it is necessary to carry out in-depth and comprehensive investigation and analysis. On the basis of the investigation, we find that lawyers participate in the review of the arrest stage and analyze the reasons. According to this, some perfect suggestions are put forward in combination with the theory and practice to explore the operation mode of the lawyer's participation in the review and arrest procedure in our country. In addition to the introduction and conclusion, this article includes four parts: the first part discusses the system of examining the lawyer participation in the arrest stage. The basic theory is to judge the theoretical value of lawyers' participation in the review and arrest stage from three aspects of procedural justice, substantive justice and judicial efficiency. First, lawyers participate in the review and arrest stage, increasing the transparency of the review and arrest procedure, and the arrest decision will be made in the way of seeing. Secondly, after the lawyer's participation, the procuratorial organ can listen and listen. In the end, after the lawyer's participation, the lawyer can help the procuratorate to discover the problems as soon as possible, improve the efficiency of the review, and avoid the start of the follow-up procedure, reduce the appeal, the number of cases of the petition, and avoid the waste of judicial resources. The second part uses the empirical research method to participate in the B District of C city and the lawyer of the grass-roots people's Procuratorate in the J district. Review the situation of the arrest stage in an all-round way. First, examine the overall situation of the participation of lawyers in the arrest stage, including the total number of cases involving lawyers, the way lawyers participate, the types of lawyers involved, the influence of lawyers' participation on the arrest system, the attitude of the prosecutor to the law teacher, and the practice of lawyers in the judicial practice. These six aspects. Through the investigation, it is found that the overall operation of the lawyer participation system is not very effective. Although the lawyer's participation in the case is widely used, the proportion of the cases is low, and the influence on the final arrest decision is small. In addition, some prosecutors and lawyers do not fully recognize the importance of the system, and do not support or be reluctant to introduce in advance. After entering the procedure, the system is to a certain extent. Then, the specific mode of the lawyer's participation in the review and arrest stage is examined. One is to listen to the lawyer's opinion pattern publicly, one is to refine the lawyer's opinion pattern. No matter which mode is taken, it is essential to listen to the lawyers' opinions. The third part is based on the empirical test. It was found that the lawyer's participation in the review of the arrest stage was mainly due to the low proportion of lawyers involved in the case, the difficulty in the intervention of legal aid, the little influence of the lawyer participation on the arrest results, the estrangement of the prosecutor and the lawyer, and the low quality of the lawyer's defense opinion. The reasons for the poor effect are as follows: first, the reasons for the participation of the main body. Some suspects do not believe in lawyers and do not want to entrust a lawyer; the public security organs, some of the staff of the procuratorial organs impede the exercise of the rights of lawyers and do not attach importance to lawyers' opinions; the lawyers are often reluctant to intervene early in the proceedings. Two is the mechanism. The reason. The lawyer's participation in the review and arrest procedure lacks a unified provision, does not specify the scope of the case of hearing the opinions of the lawyer, nor is it unifying, receiving, examining and handling procedures, and the subsequent relief procedures are missing and the overall operability is not strong. Three is the original cause of other aspects, including inadequate legal aid, and some lawyers are slack in the performance of their duties. The fourth part, according to the problems found in the investigation, puts forward the suggestions to improve the lawyer's participation in the review and arrest procedure. In view of the problems found in the investigation, the first step is to change the concept to improve the lawyer's intervention rate in the arrest stage. The lawyer should improve the consciousness of participation; the public should raise the legal consciousness to build a good judicial environment. Secondly, it is necessary to establish a lawyer's participation procedure, to listen to the scope of the lawyer's opinion, to establish and perfect the information, to hear, receive, review and handle, to feed back the procedure of reasoning, and to establish a certain relief mechanism to protect the lawyer from participating in the procedure. All these measures include strengthening the information exchange and connection between the public security organs, the procuratorial organs and the three lawyers, in order to guarantee the lawyer's timely intervention in the review and arrest procedure, to improve the legal aid system, to guarantee the criminal suspects to get the help of lawyers in time, to strengthen the rights of lawyers and to enhance their defense ability. At the same time, we must strengthen the supervision and restriction of lawyers' behaviors so as to ensure that lawyers perform their duties correctly.
【学位授予单位】：西南政法大学
【学位级别】：硕士
【学位授予年份】：2015
【分类号】：D925.2

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