“防患于未然”的警醒与探讨——兼论我国刑法第306条的存与废

Warning and Discussion of Providing Against Possible Trouble ——to Disscuss the Existing and Deposing about the 306th Item in Chinese Criminal Law

我国刑法自1997年修改之后,刑法第306条关于辩护人、诉讼代理人毁灭证据、伪造证据、妨害作证罪的规定就备受法律界尤其是律师界的关注,取消刑法第306条的议案屡次被提交全国人民代表大会。有人认为刑法第306条属于职业歧视,导致职业报复现象的发生和法律的重置,使律师不愿代理刑事案件,造成司法人员和律师在法律上的不平等,影响律师权益的保障。笔者通过对上述观点的分析,提出如何正确对待和完善该条法律规定的建议。

After the amendment of Chinese Criminal Law in 1997, the 306th on the criminal prectipt about paracletes and legal representatives' s destroying proof or forging proof or hindering verification have been attracted the legal circles especially the lawyer circles' s attention. The proposal to cancel the 306th item in Chinese Criminal Law had been put in the Chinese People' s congress for some times. Somebody thinks the 306th item in Chinese Criminal Law had been put in the Chinese people' s congress for some times. Somebody thinks the 306th item in Chinese Criminal law belonging to occupational discrimination, resulting in the occurring of occupational retaliatory phenomenon and the laws repeating, it makes lawyers not to like to act as an agent in criminal cases, it leads to the inequality between judicial personnels and lawyers, it affects the safeguards about lawyer's rights and interests. The writer puts forward some advices on how to treat correctly and perfect the precript of the legal item through the analysis on the above - mentioned viewpoints.