李庄案程序性法律冲突新问题初探

由于我国现有法规存在瑕疵和漏洞,使司法机关整体作为回避主体被忽视,故应当完整、准确、具体地完善司法机关的回避制度,使司法机关的整体回避规定相对完整、独立地表现出来。由于律师并非当事人本人,无从判断事实真相,其教授辩护技巧与教唆作伪证难以区别,故全面、客观、公正地理解律师职业豁免权,也是《律师法》亟待解决的新问题之一。《刑事诉讼法》原则上要求证人应当出庭作证,其司法解释依此进行,但真正执行起来却是自相矛盾的,使得法庭难以依法裁判。而依据关键证人理论精神,李庄案证人理应出庭作证。此外,《刑事诉讼法》并未限制同案被告人出庭对质,实际上变相承认他们可以互为证人。

Investigating New Problem of Procedural Legal Conflict in Li Zhuang's Case

The defects and loopholes existing in China's legal system ignore judicial organs' role of integral avoidance subject.Therefore,the avoidance system for judicial organs should be perfected completely and exactly,so that the regulation of its integral avoidance can be realized relatively completely and independently.The fact that the lawyers are not the litigants and cannot judge whether the evidence provided by litigants is true makes it difficult to tell the difference between their instruction of defending skills and their instigation to perjury,as a result of which we should have a complete,objective,and fair understanding of lawyers' vocational immunity,which is also one of the urgent problems for Lawyers Law to solve.In principle,Criminal Procedure Law requires witnesses to be present at the court and the judicial explanations should follow this principle.However,it is self-contradictory in practice and makes the court have difficulty in judging.According to the theory of key witness,the witnesses of Li Zhuang's case should be present at the court.Moreover,Criminal Procedure Law puts no limitation on the confrontation of defendants involved in the same case,which actually admits them to be witnesses mutually.