刑事诉讼律师拒证权探究
发布时间：2018-08-13 15:33
【摘要】：在大陆法系和英美法系多国中,为保护特定利益和关系,都将律师拒证权作为证据规则加以明确。目前,律师拒证制度在我国还没有明确确立,同时对广大律师是不是享有拒证权力也还没有规定,在实务界和理论学界,律师拒证权力这一问题受到了广泛的关注。我国律师拒证权制度的缺失导致司法实践中律师辩护权利无法充分行使。尤其是在刑事诉讼中,律师被侦查机关、追诉机关强制要求就其与犯罪嫌疑人、被告人之间的秘密交流涉及的信息如隐私、司法机关未掌握的犯罪事实等作证,以实现司法机关尽快查清案件事实的目的。如果律师被强制作证,将产生许多不利后果,如侵犯当事人的隐私,打破律师与当事人建立的忠诚信任关系,妨碍犯罪嫌疑人、被告人和律师辩护基本权利的实现,不利于保护人权,影响律师执业活动的开展。导致刑事诉讼盲目追求实体正义,忽视程序正义,不利于多元化诉讼价值的实现。虽然我国尚未建立律师拒证制度,但与律师拒证制度相关的立法早就存在。如《律师法》38条规定的律师职业群体的保密义务、《刑事诉讼法》第60条规定的律师应当承担作为知情者的社会人的作证义务、《刑事诉讼法》第46条规定的律师保密权利、《刑法》第306条的律师伪证罪和第310条包庇罪的规定。基于我国立法上对律师权利与义务设置的不均衡,辩护律师进退两难。在律师选择承担保密义务后,可能面临司法机关包庇罪、律师伪证罪等罪名的无理追究。现行规定导致的主要问题有:法律之间对律师保密行为的规定存在冲突,律师面临作证义务和职业道德冲突难题;司法机关对律师拒绝就犯罪嫌疑人、被告人的秘密信息作证的行为追究律师责任,律师面临伪证罪或包庇罪的风险;律师被强制作证进退两难,即便作证,证言也丧失一定可靠性。构建律师拒证权制度要把握全局,整体规划,以“利益衡量、合理借鉴、严格限制”为指导原则,在制度上建立一个适合我国的相对合理的律师拒证制度,减少律师拒证制度在我国建立可能产生的负面效应,如为案件事实的查清制造一定的障碍;降低诉讼效率,增加诉讼成本;产生律师滥用拒证权利的现象等。在具体制度设计方面要进一步完善,包括对律师拒证权制度的权利主体、保护对象、保护范围、例外情形、法律责任进行规定。同时要有相对成熟的配套机制,如律师豁免权制度,对律师某些情形下的言论进行免责;通过证据开示制度对律师掌握的当事人信息能否进入诉讼程序进行判断;建立律师自治体制,提升律师自身道德修养,强化为当事人服务的理念。
[Abstract]:In many countries of civil law system and common law system, in order to protect specific interests and relations, lawyers' right to refuse evidence is defined as evidence rule. At present, the system of lawyer refusing certificate has not been clearly established in our country, at the same time, there is no stipulation on whether the vast number of lawyers enjoy the power of refusing to testify. In the field of practice and theory, the problem of lawyer's power of refusing to testify has been paid more and more attention. The lack of the lawyer's right of refusing to testify in our country leads to the lawyer's right of defense unable to be fully exercised in judicial practice. In particular, in criminal proceedings, lawyers are required by the investigative and prosecution authorities to give evidence on the information involved in secret exchanges between them and the suspects and defendants, such as privacy, criminal facts not mastered by the judicial authorities, and so on. In order to achieve the judicial organs as soon as possible to find out the facts of the case. If a lawyer is forced to testify, there will be many adverse consequences, such as violating the privacy of the client, breaking the relationship of loyalty and trust established between the lawyer and the client, impeding the realization of the basic right of the suspect, the accused and the lawyer to defend. It is not conducive to the protection of human rights and affects the development of lawyers' practice activities. It leads to the blind pursuit of substantive justice and neglect of procedural justice in criminal proceedings, which is not conducive to the realization of pluralistic litigation value. Although our country has not yet established the system of lawyers' refusal to license, but the legislation related to the system of refusal of lawyers' license has existed for a long time. In the case of the obligation of confidentiality of the professional group of lawyers as stipulated in Article 38 of the Law on lawyers, the lawyer under Article 60 of the Code of Criminal procedure shall bear the obligation of testifying as a social person who knows, and Article 46 of the Code of Criminal procedure provides for the protection of lawyers Secret right, the crime of perjury of lawyer in article 306 of the Criminal Law and the crime of covering up in article 310. Based on the imbalance between the rights and obligations of lawyers in our legislation, defense lawyers are in a dilemma. After lawyers choose to assume the duty of confidentiality, they may face unreasonable prosecution of crimes of judicial protection and perjury. The main problems caused by the current regulations are: there are conflicts between laws concerning the confidentiality of lawyers, lawyers are faced with difficulties in the duty to testify and conflicts in professional ethics, and the judicial organs refuse to deal with criminal suspects with regard to lawyers, The defendant's behavior of testifying with secret information investigates the lawyer's responsibility, and the lawyer is faced with the risk of perjury or concealment; the lawyer is forced to testify in a dilemma, even if he testifies, the testimony also loses a certain degree of reliability. To construct the system of lawyers' right of refusing to testify, we should grasp the overall situation, plan as a whole, take the principle of "interests weigh, reasonable use for reference, strictly restrict" as the guiding principle, and set up a relatively reasonable system of lawyers refusing to testify in the system suitable for our country. To reduce the possible negative effects of the establishment of the lawyer's refusal system in China, such as to create certain obstacles for the investigation of the facts of the case, to reduce the efficiency of litigation, to increase the costs of litigation, and to produce the phenomenon of lawyers abusing the right of refusing to testify, and so on. The design of the specific system should be further improved, including the regulation of the subject of the right, the object of protection, the scope of protection, the exceptional situation and the legal responsibility of the lawyer's right to refuse to testify. At the same time, there should be a relatively mature supporting mechanism, such as lawyer immunity system, the lawyer under certain circumstances of speech exemption, through the evidence disclosure system to judge whether the client information held by lawyers into the proceedings; Establish the lawyer autonomy system, improve the lawyer's own moral accomplishment, strengthen the idea of serving the client.
【学位授予单位】：江西财经大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D925.2
本文编号：2181407
[Abstract]:In many countries of civil law system and common law system, in order to protect specific interests and relations, lawyers' right to refuse evidence is defined as evidence rule. At present, the system of lawyer refusing certificate has not been clearly established in our country, at the same time, there is no stipulation on whether the vast number of lawyers enjoy the power of refusing to testify. In the field of practice and theory, the problem of lawyer's power of refusing to testify has been paid more and more attention. The lack of the lawyer's right of refusing to testify in our country leads to the lawyer's right of defense unable to be fully exercised in judicial practice. In particular, in criminal proceedings, lawyers are required by the investigative and prosecution authorities to give evidence on the information involved in secret exchanges between them and the suspects and defendants, such as privacy, criminal facts not mastered by the judicial authorities, and so on. In order to achieve the judicial organs as soon as possible to find out the facts of the case. If a lawyer is forced to testify, there will be many adverse consequences, such as violating the privacy of the client, breaking the relationship of loyalty and trust established between the lawyer and the client, impeding the realization of the basic right of the suspect, the accused and the lawyer to defend. It is not conducive to the protection of human rights and affects the development of lawyers' practice activities. It leads to the blind pursuit of substantive justice and neglect of procedural justice in criminal proceedings, which is not conducive to the realization of pluralistic litigation value. Although our country has not yet established the system of lawyers' refusal to license, but the legislation related to the system of refusal of lawyers' license has existed for a long time. In the case of the obligation of confidentiality of the professional group of lawyers as stipulated in Article 38 of the Law on lawyers, the lawyer under Article 60 of the Code of Criminal procedure shall bear the obligation of testifying as a social person who knows, and Article 46 of the Code of Criminal procedure provides for the protection of lawyers Secret right, the crime of perjury of lawyer in article 306 of the Criminal Law and the crime of covering up in article 310. Based on the imbalance between the rights and obligations of lawyers in our legislation, defense lawyers are in a dilemma. After lawyers choose to assume the duty of confidentiality, they may face unreasonable prosecution of crimes of judicial protection and perjury. The main problems caused by the current regulations are: there are conflicts between laws concerning the confidentiality of lawyers, lawyers are faced with difficulties in the duty to testify and conflicts in professional ethics, and the judicial organs refuse to deal with criminal suspects with regard to lawyers, The defendant's behavior of testifying with secret information investigates the lawyer's responsibility, and the lawyer is faced with the risk of perjury or concealment; the lawyer is forced to testify in a dilemma, even if he testifies, the testimony also loses a certain degree of reliability. To construct the system of lawyers' right of refusing to testify, we should grasp the overall situation, plan as a whole, take the principle of "interests weigh, reasonable use for reference, strictly restrict" as the guiding principle, and set up a relatively reasonable system of lawyers refusing to testify in the system suitable for our country. To reduce the possible negative effects of the establishment of the lawyer's refusal system in China, such as to create certain obstacles for the investigation of the facts of the case, to reduce the efficiency of litigation, to increase the costs of litigation, and to produce the phenomenon of lawyers abusing the right of refusing to testify, and so on. The design of the specific system should be further improved, including the regulation of the subject of the right, the object of protection, the scope of protection, the exceptional situation and the legal responsibility of the lawyer's right to refuse to testify. At the same time, there should be a relatively mature supporting mechanism, such as lawyer immunity system, the lawyer under certain circumstances of speech exemption, through the evidence disclosure system to judge whether the client information held by lawyers into the proceedings; Establish the lawyer autonomy system, improve the lawyer's own moral accomplishment, strengthen the idea of serving the client.
【学位授予单位】：江西财经大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D925.2
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