我国侦查阶段律师辩护权问题研究

发布时间：2018-11-08 16:45

【摘要】：辩护权的发展水平是测量一国刑事法治发展水准的试金石，对该权利的重视既关系到刑诉结构的均衡，同时又彰显着对人权的尊重和保障。我国律师辩护权的变革经历了一个曲折且相对漫长的发展过程。2013年1月1日新《刑事诉讼法》的正式生效，无疑为刑事辩护律师执业带来了新的春天，尤其在第33条明确了我国律师在侦查阶段辩护人的诉讼地位，，更是从深度上以及广度上拓宽了律师的辩护权。然而，司法实践中律师侦查阶段的会见是否真的畅通无阻？调查取证是否毫无后顾之忧？律师意见是否被择善而从？抑或新刑诉法的实施给侦查阶段的律师辩护带来了新的困惑？该类问题需如何加以有效解决？基于上述思考，笔者认为有必要对我国侦查阶段律师的辩护权作一番较为系统的研究。本文共分为三部分，分别为引言、正文、结论，具体而言：一、引言部分。笔者主要以一个跨越新旧刑诉法实施期间依然存在会见难的案例为切入点，反思我国未来新刑诉法的实施能够多大程度上实现“尊重与保障人权”。二、正文部分。第一章为新刑诉法关于侦查阶段辩护权规定的亮点概述。笔者粗略地对比了旧法及新刑诉法有关侦查阶段律师地位的规定，并肯定了新刑诉法明确侦查阶段律师辩护人的地位无论对构建新型侦辩格局、重视程序性辩护还是保障人权都具有极其重要的现实意义。同时，分别从侦查阶段律师的会见权、调查取证权、意见权等四个方面简单地阐述了新刑诉法获得的进步。第二章为侦查阶段律师辩护权行使面临的困惑。笔者主要从以下四方面予以论述：从立法本身及司法实践中存在的落差阐述侦查阶段律师行使会见权存在的困惑；从立法本身分别论述了该阶段律师自行调查取证或者申请调查取证存在的缺陷；从对侦查机关侦查活动及检察机关审查批捕角度论述意见权行使存在的困惑；其他困惑。第三章为完善侦查阶段律师辩护权的若干对策。笔者主要从以下三个方面予以论述：完善相关立法规定；从犯罪嫌疑人及司法人员角度阐述其需要树立科学司法观念；强化律师队伍建设。三、结论部分。主要对上文的观点进行总结性说明。
[Abstract]:The development level of the right of defense is the touchstone of measuring the development level of a country's criminal rule by law. The emphasis on this right is not only related to the balance of the criminal prosecution structure, but also shows the respect and protection of human rights. The reform of lawyers' defense rights in China has experienced a tortuous and relatively long development process. The new Criminal procedure Law came into effect on January 1, 2013, which undoubtedly brings a new spring for the practice of criminal defense lawyers. Especially in Article 33, it clarifies the litigant status of our lawyers in the investigation stage, and widens the lawyer's right of defense in depth and breadth. However, in judicial practice, is the interview between lawyers in the investigation stage really unobstructed? Is the investigation and gathering of evidence without any worries? Was the lawyer's opinion chosen for good? Or has the implementation of the new Criminal procedure Law brought new confusion to the defense of lawyers in the investigation stage? How can this kind of problem be solved effectively? Based on the above thinking, the author thinks that it is necessary to make a systematic study on the defense rights of lawyers in the investigation stage in our country. This article is divided into three parts, respectively, the introduction, the text, the conclusion, specifically: first, the introduction. Based on a case that is still difficult to meet during the implementation of the new and old criminal procedure law, the author reflects on the extent to which the implementation of the new criminal procedure law in our country can realize "respecting and safeguarding human rights" in the future. Second, the text. The first chapter is the highlight of the new Criminal procedure Law about the right to defense in the investigation stage. The author roughly compares the provisions of the old law and the new criminal procedure law about the lawyer's status in the investigation stage, and affirms that the new criminal procedure law clarifies the position of the lawyer's defender in the investigation stage, no matter how to construct a new pattern of investigation and debate. It is of great practical significance to attach importance to procedural defense or to protect human rights. At the same time, the author briefly expounds the progress of the new criminal procedure law from four aspects: the meeting right of lawyer, the right of collecting evidence and the right of opinion. The second chapter is the puzzlement of lawyer's right of defense in investigation stage. The author mainly from the following four aspects to discuss: from the legislation itself and the judicial practice of the gap in the investigation stage lawyers exercise the right to meet with the existence of confusion; From the point of view of the legislation itself, this paper discusses the defects of the lawyer's own investigation and evidence collection or the application for the investigation evidence at this stage; discusses the puzzlement of the exercise of the right of opinion from the angle of the investigation activities of the investigation organs and the examination and approval of the procuratorial organs; and other puzzles. The third chapter is to perfect the investigation stage lawyer's defense right several countermeasure. The author mainly discusses from the following three aspects: perfecting the relevant legislative provisions; expounding the need to establish scientific judicial concept from the angle of criminal suspects and judicial personnel; strengthening the construction of lawyers. III. Conclusion. The main point of view above for a summary statement.
【学位授予单位】：华东政法大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D925.2

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