我国现行辩护制度管窥

1996年《中华人民共和国律师法》的制定和新的刑事诉讼法及刑法的相继实施,给人以极大的鼓舞,但我国当前的律师执业状况却不容乐观,修改后的刑事诉讼法仍然解决不了控辩双方力量不均衡的问题。检察机关的法律监督权在审判阶段成了凌驾于辩护职能与审判职能之上的一项权利,严重破坏了诉讼结构。而刑法第306条规定的"辩护人、诉讼代理人帮助伪造证据罪"更是悬在律师头上的"达摩克利斯之剑"。因此,努力改善辩护律师的执业环境,使得我国能够满足国际最低司法公正标准,已成为我国整个刑事程序亟待改革的问题。

Glance on the current system of vindication in China

The "People's Republic of China's Lawyers Law" issued in 1996 and the consecutive practice of new laws on criminal lawsuits and the criminal laws were quite welcome in the legal fields. However, the current situation for lawyers' practice has not much reason to feel prosperous, and the revised laws of criminal lawsuits even cannot solve the problem of unbalanced force between the prosecution side and the prosecuted one. The right of legal supervision held by the prosecution board has become a supreme right over both the vindication function and the judge function in the phase of judge. This right comes to almost destroy the lawsuit structure as a result. In addition, the 306 item of "crime arising from the vindicator, lawsuits agent's participation in fraudulence of evidences" defined in the state's criminal law has become the "sword of Damocles" over the head of lawyer. Therefore, an effort to innovate the practicing environment for lawyers in order to meet the basic international requirements for juridical justice is a big problem to be reformed in the whole criminal procedure in China.