新刑诉法视野下的刑事律师辩护权实现研究

发布时间：2018-08-23 12:11

【摘要】：程序决定着公正。刑事律师辩护权的保障直接影响着诉讼程序能否公正的进行,更与公民的合法权利是否会受到公私权力的恣意侵犯紧密相关。很长一段时间,在法律制度和司法实务中,刑事律师的辩护权问题一直处于尴尬局面。相关立法机关虽然制定了一系列保障律师权利的法律法规,但从权利实践现状来看,在很大的程度上还是治标不治本。而树立正确的权利本位观念已成为一种趋势,不仅保护了律师的辩护权,并且体现了被追诉人的人权保障。国家应从制度上强化对公权力的制约,防止权力过度膨胀滥用而侵害律师合法权利的行使,完善权力制约机制,在实践中监督司法机关、行政机关依法行使职权,保障律师权利,以期提高律师投身诉讼活动的积极性,进一步推进我国的司法文明建设。本文立足新刑诉实施以后的诉讼现状,分五个章节叙述律师辩护权,第一章绪论,主要阐述国内外律师辩护权的相关法律制度;第二章具体介绍会见通信权、阅卷权和调查取证权从1996年刑诉、2008年新《律师法》到2012年新刑诉以来的发展变化,直观了解辩护权的内容;第三章分析目前诉讼活动中会见权、阅卷权和调查取证权在法律制度上和实践中的进步性与存在的问题及表现,也是本文的核心内容;第四章从宏观、微观角度剖析出现上述问题的原因,宏观角度有司法环境、诉讼体制、立法缺陷、滥用执法权和律协律所管理有限五个方面,微观则是从律师队伍自身找原因,第五章是面对这些问题,针对症结,提出改善的想法、建议,以谋求法律法规规定的律师辩护权能得到真正意义上的实现,而不是纸上谈兵。
[Abstract]:Procedure determines justice. The guarantee of the criminal lawyer's right of defense directly affects whether the procedure can be carried out fairly, and it is closely related to whether the citizen's legal rights will be infringed by the public and private rights. For a long time, in the legal system and judicial practice, the defense rights of criminal lawyers have been in an awkward situation. Although the relevant legislative organs have formulated a series of laws and regulations to protect the rights of lawyers, but from the current situation of practice of rights, to a large extent, it is still to a large extent to deal with the symptoms and not the root causes. It has become a trend to establish the right standard concept, which not only protects the lawyer's right to defense, but also embodies the human rights guarantee of the accused. The state should strengthen the restriction on the public power from the system, prevent the excessive expansion and abuse of the power and encroach on the exercise of the lawyer's legal right, perfect the power restriction mechanism, supervise the judicial organ and the administrative organ to exercise their functions and powers according to law in practice. To protect lawyers' rights, to improve the enthusiasm of lawyers to participate in litigation activities, and to further promote the construction of judicial civilization in China. Based on the status quo of the litigation after the implementation of the new criminal suit, this paper describes the lawyer's right to defense in five chapters, the first chapter is an introduction, mainly describes the domestic and foreign lawyers' right to defend the relevant legal system; the second chapter specifically introduces the right to meet with the communication, The rights of reading papers and collecting evidence from 1996, 2008, 2008 to 2012, the development and changes of the right to defense, the third chapter analyzes the right to meet in the current litigation activities, It is also the core content of this paper to analyze the reasons of the above problems from the macro and micro angles, and the judicial environment from the macro and micro angles. The progress and the existing problems and the performance of the right of marking and collecting evidence in the legal system and in practice are also the core contents of this paper, the fourth chapter analyzes the reasons for the above problems from the macro and micro angles. There are five aspects of litigation system, legislative defects, abuse of law enforcement power and limited management of the law association law firms. In the fifth chapter, in the face of these problems, we put forward some ideas and suggestions for improvement in the face of these problems. In order to seek the lawyer's right of defense as stipulated by laws and regulations, it can be realized in real sense rather than on paper.
【学位授予单位】：江西师范大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D925.2

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