贿赂案件侦查阶段律师会见权研究

发布时间：2018-07-23 07:46

【摘要】：律师的会见权,作为辩护律师固有的一项权利,受到法律的明确保护和律师们的积极维护。对于贿赂案件,犯罪嫌疑人是否能及时会见到辩护律师对于嫌疑人权益的保障尤为重要。由于缺乏证明犯罪的直接证据,检察机关通过对犯罪嫌疑人羁押审讯来寻找案件的突破口,这时嫌疑人往往因辩护能力不足而处于弱势地位。只有当律师接受委托后,在侦查阶段提前介入,并充分行使辩护权,才能打破贿赂案件相对封闭的侦办模式。律师在侦查阶段会见嫌疑人,对维持控辩平等的司法秩序,促进司法的公正和权威,保护被追诉人的合法权益有着积极的作用。但现实情况却并不乐观,贿赂案件律师在侦查阶段行使会见权经常会一波三折。搞清楚律师会见难现象背后的深层次原因,有针对性地提出改进措施,对于规范律师会见制度,实现控辩双方良性互动,依法指控犯罪,更好地保障犯罪嫌疑人合法权益、推动刑事辩护制度发展进步具有重要的现实意义。本论文除引言和结语外共分为四个部分,主要内容如下:第一部分,指出贿赂案件律师的会见权在新刑诉法颁布实施后的一系列新变化。为改善一直以来律师“会见难”的现状,2012年《刑事诉讼法》在《律师法》的基础上对律师会见权的保障增添了不少新的法律规范。与1996年《刑事诉讼法》相比,律师的会见权有了进一步的扩大。犯罪嫌疑人可以在侦查阶段委托辩护律师,律师的会见程序也更加便捷,取消了侦查机关可以派人在场的规定。同时,新刑诉法第47条对于侵犯律师会见权的问题也开辟了一条新的救济途径。第二部分,对律师在侦查阶段会见贿赂案件嫌疑人时遇到的主要障碍进行归纳梳理。虽经《律师法》、《刑事诉讼法》的修改,大多数刑事案件律师的会见权取得了较为明显的效果,但对于贿赂案件律师会见难的问题依然不容乐观。主要存在检察机关将普通贿赂案件界定为特别重大贿赂案件来限制律师会见,有关部门无故拖延安排律师会见或在律师会见时提特殊要求,律师权利被侵犯却得不到有效救济等问题。徒法不足以自行,贿赂案件律师会见难的现状还存在着司法实践中方方面面的阻碍。第三部分,分析律师会见难背后的深层次原因。律师会见难主要有四个方面的原因,就相关法律规范而言,司法解释对特别重大贿赂案件的范围认定和刑诉法对律师会见的一些程序性规定还存在缺陷。同时,检察机关也有执法观念转变不及时、侦查模式转型不及时、执法办案考评体系不合理等问题,检察机关在部门利益的驱使下,难免对会见进行不当阻碍。就律师自身而言,一些律师在金钱、利益的诱惑下不惜铤而走险,违反职业道德和执业纪律不正当会见犯罪嫌疑人等,也使人们对律师行业产生了偏见。除此之外,一系列刑事政策等客观方面的因素也对贿赂案件律师的会见权产生一定的消极影响。第四部分,提出保障律师会见权的意见建议。如何对律师会见权进行全面的保障,首先要完善相关法律规范;其次,检察机关必须及时转变执法观念、推动侦查模式转型发展,提高侦查水平和能力,建立完善的侦查权制约机制和律师会见监督机制。同时,办案人员与律师要提高自身素质,增强互信与合作;最后,打击贿赂犯罪与坚持宽严相济的刑事政策必须两手抓,不能顾此失彼。保障律师会见权也是保障人权,都是维护司法公正,构建法治社会的必然要求和题中之意。
[Abstract]:The right to meet the lawyer, as an inherent right of the defense lawyer, is clearly protected by the law and actively maintained by the lawyers. For a bribe case, it is particularly important for the suspect to see the defense lawyer in time to safeguard the rights and interests of the suspect. The procuratorial organ has passed the criminal suspicion because of the lack of direct evidence of the crime of proof. Suspect detention trial to find the breach of the case, at this time the suspect is often in a weak position because of insufficient defense ability. Only when the lawyer accepts the entrustment, it can break the relative closed detection mode of the bribery case by intervening in the investigation stage and fully exercising the right of defense. The lawyer meets the suspect in the stage of investigation and maintains the accusation. The equal judicial order, promote the justice and authority of the judiciary and protect the legitimate rights and interests of the accused has a positive role. But the reality is not optimistic. The right to meet the right of meeting the lawyer in the investigation stage is often broken down. It is of great practical significance to standardize the lawyer's meeting system, realize the benign interaction between the prosecution and the defense, charge the crime in accordance with the law, guarantee the legitimate rights and interests of the criminal suspects and promote the development and progress of the criminal defense system. This paper is divided into four parts except the introduction and the conclusion. The main contents are as follows: the first part, points out the lawyer of bribery case. The right of meeting is a series of new changes after the promulgation and implementation of the new criminal law. In order to improve the present situation of the lawyer's "meeting difficult", in 2012, the law of criminal procedure added a number of new legal norms to the protection of the right to meet the lawyer on the basis of the law of the lawyer. Compared with the criminal procedure law in 1996, the right to meet the lawyer has been further expanded. The criminal suspect can entrust the defense lawyer at the stage of investigation, the lawyer's meeting procedure is also more convenient, and the provisions of the investigation organ can be cancelled. At the same time, the forty-seventh new criminal procedure law has opened up a new way of relief for the right to meet the lawyer's right of meeting. The second part, the lawyer meets the bribery case in the investigation stage. The main obstacles encountered in the case of the suspect are summed up. Although the amendment of the law of the lawyers and the amendment of the criminal procedure law, the right to meet the lawyers in most criminal cases has been more obvious, but it is still not optimistic about the difficulty of meeting lawyers in bribery cases. The main existence of the inspection authorities is to define the common bribery cases as particularly heavy. The case of big bribe to restrict the lawyer's meeting, the relevant department procrastinating the lawyer's meeting or asking for special request when the lawyer meets, the lawyer's rights are violated but not effective relief. The apprentice law is not sufficient. The difficult situation of meeting the lawyer in bribery case still exists in the judicial practice of the Chinese side. Analysis of the third part, There are four main reasons behind the difficulty of the lawyer's meeting. There are mainly reasons for the difficulty of the lawyer's meeting. In terms of the relevant legal norms, the scope of the judicial interpretation on the scope of the special major bribery cases and the procedural provisions on the meeting of the lawyers are still defective. At the same time, the procuratorial organs have not changed the idea of law enforcement in time, and the investigation model is not timely. When the type of transformation is not in time, the system of examination and evaluation of the law enforcement is unreasonable, the procuratorial organs are unavoidable to obstruct the meeting under the drive of the interests of the Department. As for the lawyers themselves, some lawyers are tempted under the temptation of money and interests, violating the professional ethics and the unjustified meeting of the criminal suspects and so on. In addition to this, the objective factors such as a series of criminal policies also have a certain negative influence on the right to meet the lawyer's right to meet the lawyer. In the fourth part, the opinions and suggestions are put forward to guarantee the right to meet the lawyer's meeting right. The organ must change the concept of law enforcement in time, promote the transformation and development of investigation mode, improve the level and ability of investigation, establish a perfect restriction mechanism of investigation right and lawyer meeting supervision mechanism. At the same time, the case handling personnel and lawyers should improve their own quality and enhance mutual trust and cooperation. Finally, the criminal policy of combating bribery crime and insisting on leniency is necessary. To protect the right of lawyers to meet is also a guarantee of human rights, which is the inevitable requirement and the meaning of maintaining judicial justice and building a society ruled by law.
【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

【相似文献】