审判阶段的有效辩护问题研究

发布时间：2018-08-24 08:53

【摘要】：审判阶段是确定犯罪和刑罚的法定阶段,是当事人权利得到声张的最后阶段。随着“以审判为中心”的司法诉讼制度改革的推进,审判阶段的作用越来越得到重视,当事人权利保护在审判阶段的措施也越来越完善。有效辩护作为贯穿整个诉讼制度的权利,是保护当事人合法权利得到救济的关键。尤其是审判阶段的有效辩护,作为被告人保障自身合法权利、对抗国家公权力的有力武器具有不可替代的重要作用。然而,当下对有效辩护的问题研究存在理论大于实践的偏倚,太多的讨论停留在对实体结果的判断上,而忽视了对程序的讨论研究,审判阶段的有效辩护问题研究在实践中也就显得苍白很多。正如在时下“于欢故意杀人案”中的讨论一样,太多的评论都在讨论审判的具体判罚,却鲜有人理会审判中的辩护行为,更少有人去通过考量审判中的辩护去判断审判结果的合法性。大家习惯了作为权力者的定断思维,只注意到具有终局性的审判结果,对过程中的辩护意见置之不理,足见,时下对审判阶段的有效辩护不够重视。实质上,在有效辩护的问题研究中也同样有这样的思维在作怪,学者们提出了自上而下的框架搭建,企图在追求结果的同时直接达到有效辩护,然而这样的制度构建实质上是忽视了有效辩护中被告人诉讼地位的表现,这是缘木求鱼的怪错误思维。在这样的权利配置下律师的权利保障反而大过了当事人权利的救济,法官的审判变成了完成工作的流程设计。实践中,律师过分在意自身权利保护,在工作中缺乏对当事人的关注,导致当事人对辩护行为的不理解,甚至直接失去了当事人的信任;法官在审判工作中流于形式,忽视当事人的辩护意见,甚至缺乏正确对待,导致司法公信力下滑。有效辩护变成了理论上的应然状态,没有发挥实质的作用,在审判阶段影响力甚小,犯罪嫌疑人和被告人权利得不到保护。笔者以为,有效辩护的问题研究应该从实践出发,以当事人为中心分析讨论,建构统一认识的有效辩护理念,确定当事人诉讼主体地位;设定以当事人为中心的律师权利机制,规范律师辩护行为,落实当事人的程序权利保障;规范惩罚犯罪和保障人权并举的法官审判权利,增强有效辩护在实体裁判中的影响力,实现“让人民群众在每一个司法案件中都感受到公平正义”(1)的目标。
[Abstract]:The trial stage is the legal stage to determine the crime and penalty, and the final stage in which the litigants' rights are publicized. With the advancement of the judicial litigation system reform, the role of trial stage is paid more and more attention, and the measures to protect the rights of the litigants in the trial stage are becoming more and more perfect. Effective defense, as the right running through the whole litigation system, is the key to protect the legal rights of the parties to obtain relief. Especially, the effective defense in the trial stage, as a powerful weapon to protect the legal rights of the accused and counter the public power of the state, has an irreplaceable important role. However, there is a bias between theory and practice in the study of effective defense, too much discussion is focused on the judgment of substantive results, and the discussion of procedure is neglected. The research on effective defense in trial stage is very pale in practice. Just as in the current discussion of "Yu Huan intentional murder," too many comments have been devoted to the specific sentencing of the trial, but few people have paid any attention to the conduct of the defense in the trial. Fewer people judge the legality of the outcome by considering the defense in the trial. We are used to the decisive thinking as power, only notice the final trial results, ignore the process of the defense opinion, see, the trial stage of the effective defense is not enough attention. In fact, in the study of effective defense, there is the same kind of thinking. Scholars have put forward a top-down framework to try to achieve effective defense directly while pursuing the result. However, the construction of such a system essentially ignores the performance of the defendant's litigation status in effective defense, which is a strange mistake of seeking fish. Under this kind of right configuration, the lawyer's right protection is bigger than the litigant's right relief, the judge's trial has become the completion work flow design. In practice, lawyers pay too much attention to the protection of their own rights, lack of attention to the parties in their work, which leads to the parties' lack of understanding of the defense behavior, and even directly loses the trust of the parties; the judge is a mere formality in the trial work. Ignore the party's defense opinion, even lack of correct treatment, resulting in a decline in judicial credibility. Effective defense has become a theoretical state of necessity, has not played a substantive role, has little influence in the trial stage, and the rights of suspects and defendants can not be protected. The author thinks that the research of effective defense should proceed from practice, analyze and discuss with the center of the parties, construct the concept of effective defense with a unified understanding, determine the status of the litigant's main body of action, and set up the mechanism of the lawyer's right to take the party as the center. To regulate lawyers' defense, to ensure the procedural rights of the parties, to regulate the judges' right to judge to punish crimes and protect human rights, and to enhance the influence of effective defense in substantive adjudication. To achieve the goal of "let the masses feel fair and just in every judicial case" (1).
【学位授予单位】：贵州师范大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D925.2

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