论我国刑辩律师的困境与出路

发布时间：2018-02-14 06:48

本文关键词： 刑辩之难执业风险法律职业共同体律师职业伦理法治　出处：《甘肃政法学院》2015年硕士论文　论文类型：学位论文

【摘要】：我国律师行业在改革开放的三十多年里得到了显著的发展,该行业已经发展成为一个社会关注度极高且较有影响力的行业,但是在行业内部,与民商事领域律师业的蓬勃发展形成鲜明对比,刑事辩护事业并没有像法治发达国家那样受到应有的尊重,导致其发展的道路历经颇多波折、甚至可以说充满艰辛。从实践的角度看:首先,刑事辩护律师的工作往往不被大众所理解,原本是中国法治建设兢兢业业的“燃灯者”,却经常被舆论冠以“罪恶帮凶”的称号。其次,刑辩律师为了保障当事人的权利,常常不得已的与代表公权力的一方发生冲突,这样的冲突在法治建设尚不完善的今天,往往给辩护律师带来巨大的职业风险,稍有不慎,自己也会丢了饭碗,甚至身陷囫囵。职业风险之外,辩护活动开展也阻碍重重,除了会见难、阅卷难、调查取证难这“老三难”问题外,实践中还表现为程序性辩护之难。最后,律师在法律职业共同体中的缺席,使得在刑事诉讼程序中,律师被视为“麻烦制造者”的角色。本文以贵阳市发生的“黎庆洪涉黑案”(又称“贵阳小河案”)为背景,具体叙述了我国刑辩律师所面临的困境已以及笔者对此困境出路的若干思考。本文分为三章,具体如下:第一章是“案情简介及该案所反映的刑辩律师的困境”,在本章中,笔者以“贵阳小河案”为背景,结合案例具体分析我国刑事辩护律师当前所面临的困境,主要分两个方面:首先是刑辩之难,主要表现为会见之难、阅卷之难、调查取证之难以及程序性辩护之难;其次是刑辩之险,主要表现为受追诉之险、名誉之险、执业之险以及辩护效果之险。第二章是“我国刑辩律师困境问题主要成因的分析”,在本章中,笔者总结了我国刑事辩护困境的三个原因:首先是律师在法律职业共同体中的缺位;其次是从律师自身角度出发,指出我国刑辩律师素质参差不齐,队伍建设管理有待提高;最后,当刑辩律师自身职业道德所要求的忠于当事人的利益与社会道德所要求的公平正义、惩戒犯罪产生冲突时,往往会使舆论对律师的工作产生误解,甚至产生负面的评价。第三章是“对于我国刑辩律师困境出路的若干构想”本章中,笔者结合困境产生的原因提出了四条建议:第一,用职业化培训的方法提升刑辩律师队伍的整体素质,这样的素质应当包括业务能力素质以及职业道德素质;第二,通过对近期发生的“邹碧华现象”进行解读,来说明我国法律职业共同体间相互尊重、信任的可行性;第三,阐述从完善立法的角度来改变辩护困境的几点思路;第四,笔者认为可以通过加强对公众的法治化教育,增强社会的民主法治意识,以期来改变舆论对辩护律师作用的负面评价。
[Abstract]:In the more than 30 years of reform and opening up, China's lawyer industry has developed into a highly concerned and influential industry, but within the industry, In contrast to the vigorous development of the legal profession in the field of civil and commercial affairs, criminal defense does not receive the due respect as the developed countries with the rule of law, which leads to a lot of twists and turns on the way of its development. From a practical point of view: first of all, the work of criminal defense lawyers is often not understood by the public. Originally a "lantern" who worked hard in the construction of the rule of law in China, they are often called "evil accomplices" by public opinion. Secondly, in order to protect the rights of the parties, criminal lawyers often have to conflict with the party representing the public power. Such conflicts are still not perfect in the construction of the rule of law today, and often bring great professional risks to defense lawyers. If they are a little careless, they will lose their jobs, or even be in danger. In addition to the professional risks, the development of defense activities will also be hindered. In addition to the difficulty of meeting, reading papers, investigating and obtaining evidence, the problem of the "old three difficulties" is also manifested in practice as the difficulty of procedural defense. Finally, the lawyer's absence in the legal profession community makes it difficult in criminal proceedings. Lawyers are regarded as "troublemakers". This article takes the case of "Li Qingghong" (also known as "Guiyang River case") in Guiyang as the background. This article is divided into three chapters: the first chapter is "the brief introduction of the case and the plight of the criminal defense lawyer reflected in this case", in this chapter, Taking Guiyang Xiaohe case as the background and combining with the case, the author analyzes the current plight of our country's criminal defense lawyer. It is mainly divided into two aspects: the first is the difficulty of criminal defense, the main performance is the difficulty of meeting and marking. It is difficult to investigate and obtain evidence and the difficulty of procedural defense, followed by the risk of criminal defense, mainly manifested as the risk of prosecution, the risk of reputation, The second chapter is "the Analysis of the main causes of the plight of Criminal Defence lawyers in China", in this chapter, The author summarizes the three reasons for the dilemma of criminal defense in our country: firstly, the absence of lawyers in the legal professional community, secondly, from the angle of lawyers themselves, pointing out that the quality of criminal defense lawyers in our country is uneven, and the construction and management of the team need to be improved. Finally, when the criminal defense lawyer's own professional ethics requires loyalty to the interests of the client and the fairness and justice required by the social morality, the punishment of the crime often causes public opinion to misunderstand the lawyer's work. In this chapter, the author puts forward four suggestions according to the reasons of the dilemma. Using the method of professional training to improve the overall quality of the criminal defense lawyers, such quality should include the quality of professional ability and professional ethics; second, through the recent "Zou Bihua phenomenon" interpretation, To illustrate the feasibility of mutual respect and trust among the legal professional communities in our country; third, to elaborate several ideas to change the dilemma of defense from the angle of perfecting legislation; 4th, the author thinks that we can strengthen the legal education to the public. Strengthen the social consciousness of democracy and rule by law in order to change the negative opinion of public opinion on the role of defense counsel.
【学位授予单位】：甘肃政法学院
【学位级别】：硕士
【学位授予年份】：2015
【分类号】：D925.2;D926.5

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