刑事审前程序中律师辩护权的完善与保障

【作者】 江明；

【导师】 李建明；

【作者基本信息】 南京师范大学 ， 法律， 2008， 硕士

【摘要】 本文研究的主题是刑事审前程序中律师辩护权的完善与保障。研究从审前程序律师辩护的理论基础和价值意义入手,再探讨审前程序中律师辩护权的内容与特点,最后阐述如何对审前程序中的律师辩护权进行完善和保障。本论文由引言、正文、结语组成。正文部分共分为四章。第一章为审前程序律师辩护的理论基础和价值意义,本章包括两部分内容,分别阐释了审前程序律师辩护的理论基础和审前程序强化律师辩护的意义。第二章为审前程序中律师辩护权的内容与特点,本章阐述了三个方面的问题,第一,阐明辩护、辩护权的概念,并在论述当事人辩护权与律师辩护权的关系的基础上,进一步提出审前程序律师辩护权的概念;第二,说明审前程序律师辩护权的权利内容,分为侦查阶段的辩护权和审查起诉阶段的辩护权两部分,并指出两个阶段权利内容的区别。第三,概括审前程序律师辩护权的特点,即辩护权的有限性、辩护权的结构制约性、辩护权的程序性。第三章为审前程序律师辩护权之完善,论述了五项权利的完善,这些权利是:会见权、阅卷权、调查取证权、申请变更、解除强制措施权、在场权。该章首先阐释了这些权利的内涵、价值,然后通过分析法律、法规及司法解释对以上诉讼权利规定中存在的缺陷以及在实际操作中存在的问题,结合国外的规定及我国具体情况,论述如何对这些权利予以完善。第四章为审前程序律师辩护权之保障。该章分为三节,分别从立法上、制度上、程序上探讨了对审前程序律师辩护权的保障。第一节为确立审前程序中的律师刑事辩护豁免权,本节通过分析《刑法》第306条缺陷,提出增加审前程序律师刑事辩护豁免权的相关规定,并提出重新设置我国律师刑事责任追诉制度。第二节为保障审前程序律师辩护权的司法审查制度的建立。探讨了审前程序引入司法审查机制对保障律师辩护权的重要意义及该制度如何建构。第三节为审前程序中程序性制裁机制的完善。提出在我国刑事审前程序对侵犯律师辩护权的行为给予程序性制裁,并探讨了这种程序性制裁的程序和手段。更多还原

【Abstract】 This thesis is a study of the improvement and guarantee of the defense rights of lawyer in the pre-trial process, beginning with the theoretical basis and meaning of the defense of lawyer in the pre-trial process, then talking about the content and trait of the defense rights of lawyer in the pre-trial process ,and last explaining how to improve and guarantee the defense rights of lawyer in the pre-trial process. This thesis is composed of three parts: Preface, Text and the Concluding. The text consists of four chapters.Chapter One is the theoretical basis and meaning of the defense of lawyer in the pre-trial process ,which consists of two parts including the theoretical basis of lawyer in the pre-trial process and the meaning of strengthen the defense of lawyer in the pre-trial process.Chapter Two is the content and trait of the defense rights of lawyer in the per-trial process. Three issues are discussed under this part: firstly, I will explain the concept of defense and right of defense. Further I will put forward the concept of the defense rights of lawyer in the per-trial process on a basis of discussing the relationship between the defense rights of litigant and attorneys. Secondly, I will explain the content of the defense rights of lawyer in the per-trial process and point out the difference to the rights in the two phase. Thirdly, I will sum up the trait of the defense rights of lawyer in the per-trial process, namely the finiteness of the defense rights, the structural conditionality of the defense rights, and the procedural quality.Chapter Three is the improvement of the defense rights of lawyer in the per-trial process, which consists of the improvement of the following five rights: the rights of interview, the rights of reading the document and records, the rights of investigation and collecting the evidence, the rights of applying changing and relieving compulsory measures, the rights of being present. Above all, the chapter explains the meaning and value of these rights . Then it analyzes laws, rules, and judicial interpretation and compares foreign laws and particular situation in China, to explain how to improve the defects existing in the above rights and solve the problems in actual practice.Chapter Four is the guarantee of the defense rights of lawyer in the per-trial process. The chapter includes three sections. This chapter discuss the guarantee of the defense rights of lawyer in the pre-trial process from the aspects of legislature, system and procedure . The first section is about establishing the criminal defense immunity of lawyer in the pre-trial process. The section analyzes the defects of Article 306 of criminal Law, thus proposes adding correlative provision about the criminal defense immunity of lawyer in the pre-trial process, and put forward to improve the system of lawyer’s criminal responsibility. The second section is the establishment of the judicial review system to guarantee the defense rights of lawyer in the pre-trial process, which discusses the significance of introducing the judicial review system in the pre-trial process to guarantee the defense rights of lawyer and how to construct the institution. The third section is the improvement of procedural punishment system in the pre-trial process, which is to procedurally punish acts infringing the defense rights of lawyer in our criminal pre-trial process and discusses the procedure and means of the procedural punishment.更多还原