刑事司法中的新型检律关系研究
发布时间：2018-10-26 19:58
【摘要】：检律关系,既包含了检察官与律师的关系,也包含了检察机关与律师的关系。检律关系作为刑事司法中重要的法律关系,是刑事司法体系中的重要元素,检律关系直接影响到司法公正的建设。我国刑事司法体系中的检律关系,主要表现为检察官与律师之间的控辩对抗与互相监督。我国的检察官和律师之间的关系经历了从无到有的三个阶段,从司法体系的缺失导致的检律缺位,到司法体系的不完善导致的检律失衡,再到如今三角构造中的检律对抗。我国的检察机关具有双重身份,同时承担了国家公诉和法律监督两种职能,在刑事司法程序中,检察官往往容易凭借其国家公职人员的身份优势,在刑事诉讼过程中对犯罪嫌疑人与辩护律师采取高压控诉的态势,因此,可能会侵害犯罪嫌疑人的诉讼权利,给辩护律师的辩护权的行使造成阻碍。综上,检律之间亟需建立起平等的对抗力量,加强对检察机关的权力监督,赋予辩护律师更多实质性的辩护权利。现实中的检律关系面临着诸多困境,主要是检律双方之间缺乏信任,并且未构建起实质上的法律共同体,再加之律师辩护权利仍然缺乏制度保障,彼此之间的沟通互动不够畅通,造成了当前的检律关系止步不前。域外国家能够建立起良好的检律关系,缘于其坚持"平等武装"理论,在检察官与律师之间实现了力量的平等,并且充分贯彻对抗性司法,坚持控辩平衡思想,从而营造平衡的对抗格局,增加双方的合作,减少双方的冲突,对于我国的检律关系发展是良好的借鉴。新型检律关系的构建,首先要坚持检律之间的"平等武装",充分贯彻与落实"三角构造"理论,在刑事司法程序中坚持程序正义原则。新型检律关系构建的关键在于要着力解决检察官与律师两者在刑事司法程序中的力量平衡问题,使彼此重新获得对方的信任与理解,从制度上以及理念上构建起真正的法律职业共同体,在立法上加强对辩护律师以及犯罪嫌疑人诉讼权利的保护,从根本上解决检律之间的良性互动问题,构建起检律之间的良性互动格局。
[Abstract]:The relationship between procurator and lawyer includes the relationship between procurator and lawyer as well as between procuratorial organ and lawyer. As an important legal relationship in criminal justice, the relationship between law and law is an important element in the criminal justice system, which directly affects the construction of judicial justice. The relationship between procurators and lawyers in the criminal justice system of our country is mainly characterized by the confrontation and mutual supervision between prosecutors and lawyers. The relationship between procurators and lawyers in our country has experienced three stages from scratch, from the absence of judicial system to the imbalance of procuratorial laws caused by the imperfection of judicial system, and to the antagonism of procuratorial laws in the triangular structure today. The procuratorial organ of our country has dual status, and has two functions of national public prosecution and legal supervision at the same time. In the criminal judicial procedure, public procurators often rely on the advantage of their national public officials' identity. In the process of criminal proceedings, criminal suspects and defense lawyers are subject to high-pressure complaints, which may infringe upon the criminal suspects' procedural rights and hinder the exercise of defence counsel's right to defense. To sum up, it is urgent to establish equal antagonism between procuratorial laws, strengthen the supervision of procuratorial organs, and give defense lawyers more substantive defense rights. In reality, the relationship between prosecutors and lawyers faces many difficulties, mainly because of the lack of trust between the parties, and the lack of a substantial legal community, plus the lack of institutional protection of lawyers' right to defend. Communication and interaction between each other is not smooth, resulting in the current regulatory relationship stalled. Foreign countries are able to establish good relations between prosecutors and lawyers because they adhere to the theory of "equal arms", realize the equality of power between prosecutors and lawyers, and fully implement adversarial justice and adhere to the idea of balance between prosecution and defense. Thus, it is a good reference for the development of the relationship between the procurators and the law to create a balanced pattern of confrontation, increase the cooperation between the two sides, and reduce the conflict between the two sides. In order to construct a new relationship between procurators and laws, we must first insist on the "equal armed forces" between the procuratorial laws, fully implement the theory of "triangular structure", and uphold the principle of procedural justice in the criminal judicial process. The key to the establishment of a new relationship between prosecutors and lawyers lies in solving the balance of power between prosecutors and lawyers in the criminal justice process, so that they can regain the trust and understanding of each other. From the system and the concept of the real legal professional community, in legislation to strengthen the defense counsel and criminal suspects to protect the right to litigation, fundamentally solve the benign interaction between the prosecution law. Build up the pattern of benign interaction between the law.
【学位授予单位】：海南大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D925.2
本文编号：2296794
[Abstract]:The relationship between procurator and lawyer includes the relationship between procurator and lawyer as well as between procuratorial organ and lawyer. As an important legal relationship in criminal justice, the relationship between law and law is an important element in the criminal justice system, which directly affects the construction of judicial justice. The relationship between procurators and lawyers in the criminal justice system of our country is mainly characterized by the confrontation and mutual supervision between prosecutors and lawyers. The relationship between procurators and lawyers in our country has experienced three stages from scratch, from the absence of judicial system to the imbalance of procuratorial laws caused by the imperfection of judicial system, and to the antagonism of procuratorial laws in the triangular structure today. The procuratorial organ of our country has dual status, and has two functions of national public prosecution and legal supervision at the same time. In the criminal judicial procedure, public procurators often rely on the advantage of their national public officials' identity. In the process of criminal proceedings, criminal suspects and defense lawyers are subject to high-pressure complaints, which may infringe upon the criminal suspects' procedural rights and hinder the exercise of defence counsel's right to defense. To sum up, it is urgent to establish equal antagonism between procuratorial laws, strengthen the supervision of procuratorial organs, and give defense lawyers more substantive defense rights. In reality, the relationship between prosecutors and lawyers faces many difficulties, mainly because of the lack of trust between the parties, and the lack of a substantial legal community, plus the lack of institutional protection of lawyers' right to defend. Communication and interaction between each other is not smooth, resulting in the current regulatory relationship stalled. Foreign countries are able to establish good relations between prosecutors and lawyers because they adhere to the theory of "equal arms", realize the equality of power between prosecutors and lawyers, and fully implement adversarial justice and adhere to the idea of balance between prosecution and defense. Thus, it is a good reference for the development of the relationship between the procurators and the law to create a balanced pattern of confrontation, increase the cooperation between the two sides, and reduce the conflict between the two sides. In order to construct a new relationship between procurators and laws, we must first insist on the "equal armed forces" between the procuratorial laws, fully implement the theory of "triangular structure", and uphold the principle of procedural justice in the criminal judicial process. The key to the establishment of a new relationship between prosecutors and lawyers lies in solving the balance of power between prosecutors and lawyers in the criminal justice process, so that they can regain the trust and understanding of each other. From the system and the concept of the real legal professional community, in legislation to strengthen the defense counsel and criminal suspects to protect the right to litigation, fundamentally solve the benign interaction between the prosecution law. Build up the pattern of benign interaction between the law.
【学位授予单位】：海南大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D925.2
【参考文献】
相关期刊论文 前1条
1 全实;;当前我国新型检律关系的构建[J];黑龙江省政法管理干部学院学报;2016年03期
，本文编号：2296794
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