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从法律规范性质角度来讲,新律师法关于律师会见犯罪嫌疑人、被告人不被监听的规定属于禁止性法律规范,而刑事诉讼法关于侦查机关可以派员在场的规定则属于选择性、授权性法律规范;据此可以判断,律师会见犯罪嫌疑人时,侦查机关遵守律师法禁止监听的规定并不违反刑事诉讼法,而如果选择行使派员在场的权力则违反律师法禁止性规范,构成一种严重违反法治原则的行为。虽然律师法与刑事诉讼法在律师会见问题上的规定没有发生实质性冲突,但该项权利的切实保障仍有待于解决诸如权利救济程序等更为实质性的制度问题,有待于刑事诉讼制度的综合性改革。
From the perspective of the nature of legal norms, the new lawyers law on the lawyers meet with suspects, the defendant is not intercepted by the provisions of the prohibition of legal norms, while the criminal procedure law on the investigative authorities may be sent to the provisions of the provisions are selective, authorize According to this, it can be judged that when the lawyer meets with the criminal suspect, the provisions of the investigating organ that obeying the lawyer’s law against snooping do not violate the criminal procedure law. If the right to choose to exercise the presence of the staff member violates the prohibition of the lawyer’s law, A serious violation of the rule of law. Although there is no substantive conflict between the lawyer’s law and the criminal procedure law on the meeting with lawyers, the effective protection of this right still needs to be solved in more substantive systems such as the right remedy procedure, Comprehensive reform.