審判階段的有效辯護(hù)問題研究
發(fā)布時間：2018-08-24 08:53
【摘要】：審判階段是確定犯罪和刑罰的法定階段,是當(dāng)事人權(quán)利得到聲張的最后階段。隨著“以審判為中心”的司法訴訟制度改革的推進(jìn),審判階段的作用越來越得到重視,當(dāng)事人權(quán)利保護(hù)在審判階段的措施也越來越完善。有效辯護(hù)作為貫穿整個訴訟制度的權(quán)利,是保護(hù)當(dāng)事人合法權(quán)利得到救濟(jì)的關(guān)鍵。尤其是審判階段的有效辯護(hù),作為被告人保障自身合法權(quán)利、對抗國家公權(quán)力的有力武器具有不可替代的重要作用。然而,當(dāng)下對有效辯護(hù)的問題研究存在理論大于實踐的偏倚,太多的討論停留在對實體結(jié)果的判斷上,而忽視了對程序的討論研究,審判階段的有效辯護(hù)問題研究在實踐中也就顯得蒼白很多。正如在時下“于歡故意殺人案”中的討論一樣,太多的評論都在討論審判的具體判罰,卻鮮有人理會審判中的辯護(hù)行為,更少有人去通過考量審判中的辯護(hù)去判斷審判結(jié)果的合法性。大家習(xí)慣了作為權(quán)力者的定斷思維,只注意到具有終局性的審判結(jié)果,對過程中的辯護(hù)意見置之不理,足見,時下對審判階段的有效辯護(hù)不夠重視。實質(zhì)上,在有效辯護(hù)的問題研究中也同樣有這樣的思維在作怪,學(xué)者們提出了自上而下的框架搭建,企圖在追求結(jié)果的同時直接達(dá)到有效辯護(hù),然而這樣的制度構(gòu)建實質(zhì)上是忽視了有效辯護(hù)中被告人訴訟地位的表現(xiàn),這是緣木求魚的怪錯誤思維。在這樣的權(quán)利配置下律師的權(quán)利保障反而大過了當(dāng)事人權(quán)利的救濟(jì),法官的審判變成了完成工作的流程設(shè)計。實踐中,律師過分在意自身權(quán)利保護(hù),在工作中缺乏對當(dāng)事人的關(guān)注,導(dǎo)致當(dāng)事人對辯護(hù)行為的不理解,甚至直接失去了當(dāng)事人的信任;法官在審判工作中流于形式,忽視當(dāng)事人的辯護(hù)意見,甚至缺乏正確對待,導(dǎo)致司法公信力下滑。有效辯護(hù)變成了理論上的應(yīng)然狀態(tài),沒有發(fā)揮實質(zhì)的作用,在審判階段影響力甚小,犯罪嫌疑人和被告人權(quán)利得不到保護(hù)。筆者以為,有效辯護(hù)的問題研究應(yīng)該從實踐出發(fā),以當(dāng)事人為中心分析討論,建構(gòu)統(tǒng)一認(rèn)識的有效辯護(hù)理念,確定當(dāng)事人訴訟主體地位;設(shè)定以當(dāng)事人為中心的律師權(quán)利機(jī)制,規(guī)范律師辯護(hù)行為,落實當(dāng)事人的程序權(quán)利保障;規(guī)范懲罰犯罪和保障人權(quán)并舉的法官審判權(quán)利,增強(qiáng)有效辯護(hù)在實體裁判中的影響力,實現(xiàn)“讓人民群眾在每一個司法案件中都感受到公平正義”(1)的目標(biāo)。
[Abstract]:The trial stage is the legal stage to determine the crime and penalty, and the final stage in which the litigants' rights are publicized. With the advancement of the judicial litigation system reform, the role of trial stage is paid more and more attention, and the measures to protect the rights of the litigants in the trial stage are becoming more and more perfect. Effective defense, as the right running through the whole litigation system, is the key to protect the legal rights of the parties to obtain relief. Especially, the effective defense in the trial stage, as a powerful weapon to protect the legal rights of the accused and counter the public power of the state, has an irreplaceable important role. However, there is a bias between theory and practice in the study of effective defense, too much discussion is focused on the judgment of substantive results, and the discussion of procedure is neglected. The research on effective defense in trial stage is very pale in practice. Just as in the current discussion of "Yu Huan intentional murder," too many comments have been devoted to the specific sentencing of the trial, but few people have paid any attention to the conduct of the defense in the trial. Fewer people judge the legality of the outcome by considering the defense in the trial. We are used to the decisive thinking as power, only notice the final trial results, ignore the process of the defense opinion, see, the trial stage of the effective defense is not enough attention. In fact, in the study of effective defense, there is the same kind of thinking. Scholars have put forward a top-down framework to try to achieve effective defense directly while pursuing the result. However, the construction of such a system essentially ignores the performance of the defendant's litigation status in effective defense, which is a strange mistake of seeking fish. Under this kind of right configuration, the lawyer's right protection is bigger than the litigant's right relief, the judge's trial has become the completion work flow design. In practice, lawyers pay too much attention to the protection of their own rights, lack of attention to the parties in their work, which leads to the parties' lack of understanding of the defense behavior, and even directly loses the trust of the parties; the judge is a mere formality in the trial work. Ignore the party's defense opinion, even lack of correct treatment, resulting in a decline in judicial credibility. Effective defense has become a theoretical state of necessity, has not played a substantive role, has little influence in the trial stage, and the rights of suspects and defendants can not be protected. The author thinks that the research of effective defense should proceed from practice, analyze and discuss with the center of the parties, construct the concept of effective defense with a unified understanding, determine the status of the litigant's main body of action, and set up the mechanism of the lawyer's right to take the party as the center. To regulate lawyers' defense, to ensure the procedural rights of the parties, to regulate the judges' right to judge to punish crimes and protect human rights, and to enhance the influence of effective defense in substantive adjudication. To achieve the goal of "let the masses feel fair and just in every judicial case" (1).
【學(xué)位授予單位】：貴州師范大學(xué)
【學(xué)位級別】：碩士
【學(xué)位授予年份】：2017
【分類號】：D925.2
本文編號：2200273
[Abstract]:The trial stage is the legal stage to determine the crime and penalty, and the final stage in which the litigants' rights are publicized. With the advancement of the judicial litigation system reform, the role of trial stage is paid more and more attention, and the measures to protect the rights of the litigants in the trial stage are becoming more and more perfect. Effective defense, as the right running through the whole litigation system, is the key to protect the legal rights of the parties to obtain relief. Especially, the effective defense in the trial stage, as a powerful weapon to protect the legal rights of the accused and counter the public power of the state, has an irreplaceable important role. However, there is a bias between theory and practice in the study of effective defense, too much discussion is focused on the judgment of substantive results, and the discussion of procedure is neglected. The research on effective defense in trial stage is very pale in practice. Just as in the current discussion of "Yu Huan intentional murder," too many comments have been devoted to the specific sentencing of the trial, but few people have paid any attention to the conduct of the defense in the trial. Fewer people judge the legality of the outcome by considering the defense in the trial. We are used to the decisive thinking as power, only notice the final trial results, ignore the process of the defense opinion, see, the trial stage of the effective defense is not enough attention. In fact, in the study of effective defense, there is the same kind of thinking. Scholars have put forward a top-down framework to try to achieve effective defense directly while pursuing the result. However, the construction of such a system essentially ignores the performance of the defendant's litigation status in effective defense, which is a strange mistake of seeking fish. Under this kind of right configuration, the lawyer's right protection is bigger than the litigant's right relief, the judge's trial has become the completion work flow design. In practice, lawyers pay too much attention to the protection of their own rights, lack of attention to the parties in their work, which leads to the parties' lack of understanding of the defense behavior, and even directly loses the trust of the parties; the judge is a mere formality in the trial work. Ignore the party's defense opinion, even lack of correct treatment, resulting in a decline in judicial credibility. Effective defense has become a theoretical state of necessity, has not played a substantive role, has little influence in the trial stage, and the rights of suspects and defendants can not be protected. The author thinks that the research of effective defense should proceed from practice, analyze and discuss with the center of the parties, construct the concept of effective defense with a unified understanding, determine the status of the litigant's main body of action, and set up the mechanism of the lawyer's right to take the party as the center. To regulate lawyers' defense, to ensure the procedural rights of the parties, to regulate the judges' right to judge to punish crimes and protect human rights, and to enhance the influence of effective defense in substantive adjudication. To achieve the goal of "let the masses feel fair and just in every judicial case" (1).
【學(xué)位授予單位】：貴州師范大學(xué)
【學(xué)位級別】：碩士
【學(xué)位授予年份】：2017
【分類號】：D925.2
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