说服与判断:审辩关系的异化及回归——以“商谈理论”为视角
发布时间：2018-11-08 09:07
【摘要】：审辩关系是刑事诉讼中的一个重要问题。近年来,我国审辩关系呈现异化的趋势,司法实践中出现的审辩冲突和辩审妥协现象背离了审辩关系的应有本质,不利于律师辩护权的保障,同时也不利于司法公正的实现。十八届四中全会提出的"审判中心主义"需要审辩关系的回归。哈贝马斯的"商谈理论"为审辩关系的研究提供了新的视角和框架。审辩关系的回归需要从理念、诉讼结构和制度层面着手,在保障法官中立的基础上强化法官阐明义务,合理规制法官的诉讼指挥权,赋予律师及时声明异议的权利,提高律师的辩护技巧,使得辩护律师和法官能够有效履行说服者和中立判断者的角色。
[Abstract]:The relationship between trial and defense is an important issue in criminal proceedings. In recent years, the relationship between trial and debate in our country presents the trend of alienation. The phenomenon of conflict and compromise in judicial practice deviates from the proper nature of the relationship between trial and debate, which is not conducive to the protection of lawyers' right to defense, and also to the realization of judicial justice. The fourth Plenary session of the 18th CPC Central Committee called for the return of the relationship between trial and debate. Habermas's Theory of negotiation provides a new perspective and framework for the study of the relationship between trial and argument. The return of the relationship between trial and argument needs to proceed from the aspects of concept, litigation structure and system, strengthen the obligation of the judge on the basis of ensuring the neutrality of the judge, regulate the judge's command of action reasonably, and endow the lawyer with the right to declare dissent in time. Improve lawyers' defense skills to enable defense lawyers and judges to effectively perform the role of persuasion and neutral judges.
【作者单位】： 中国人民大学法学院;
【分类号】：D925.2
，
本文编号：2318017
[Abstract]:The relationship between trial and defense is an important issue in criminal proceedings. In recent years, the relationship between trial and debate in our country presents the trend of alienation. The phenomenon of conflict and compromise in judicial practice deviates from the proper nature of the relationship between trial and debate, which is not conducive to the protection of lawyers' right to defense, and also to the realization of judicial justice. The fourth Plenary session of the 18th CPC Central Committee called for the return of the relationship between trial and debate. Habermas's Theory of negotiation provides a new perspective and framework for the study of the relationship between trial and argument. The return of the relationship between trial and argument needs to proceed from the aspects of concept, litigation structure and system, strengthen the obligation of the judge on the basis of ensuring the neutrality of the judge, regulate the judge's command of action reasonably, and endow the lawyer with the right to declare dissent in time. Improve lawyers' defense skills to enable defense lawyers and judges to effectively perform the role of persuasion and neutral judges.
【作者单位】： 中国人民大学法学院;
【分类号】：D925.2
，
本文编号：2318017
本文链接：https://www.wllwen.com/falvlunwen/susongfa/2318017.html
