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从古至今,刑事案件在各类案件总量中的比重是较大的,一直是人们高度关注的一类案件,但是在当今中国,刑事案件比例不断上升的时候,律师却对刑事辩护敬而远之,这是由于我国法律对辩护人责任的规定存在诸多问题,导致实践中刑事辩护成功率低、律师办理刑事案件积极性不高等问题。其主要问题有诉讼构造不合理,控辩不平等;缺少程序性辩护权;律师刑事辩护的风险大;以及无罪推定原则的“虚假”适用等原因。本文详细分析上述问题,并结合外国立法经验对我国辩护人在刑事审判中实际责任中存在的问题提出解决方案。
Since ancient times, the proportion of criminal cases in the total amount of various types of cases has been relatively large and has always been a type of case that people are most concerned about. However, in today’s China, the proportion of criminal cases is on the rise, while lawyers are far from criminal defense. This is because the law of our country has many problems to the defender’s responsibility, which leads to the low success rate of criminal defense in practice and the low enthusiasm of lawyers in handling criminal cases. The main problems include the irrational structure of litigation, inequality between prosecution and defense, the lack of procedural rights of defense, the risk of lawyers’ criminal defense and the “false” application of presumption of innocence. This article analyzes the above problems in detail and puts forward a solution to the existing problems of our country’s defender in the actual responsibility of criminal trial with the experience of foreign legislation.