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1997年刑法修订,增设了辩护人毁灭证据、伪造证据、妨害作证罪,但该法律条文在适用上却引起了很大的争议,由于该条不当适用导致许多律师蒙冤入狱。本文从本罪的概念与所保护的法益出发,详细考察了关于其犯罪构成的国内外的不同观点,得出了本罪兼具行为犯与结果犯的结论。除此之外,本文也论及本罪的共同犯罪中关于如何定罪的问题。最后结合对上述问题的探讨,进而从立法角度论述本条规定中所存在的缺陷以及与相关法条之间的冲突与适用中存在的问题,以期促进我国刑事辩护制度的进一步完善。
In 1997, the criminal law was amended to provide more defenders to destroy evidence and forge evidence to prejudice the testimony. However, the application of the law has caused a great deal of controversy. Due to the improper application of the article, many lawyers were sentenced to unjust imprisonment. Based on the concept of the crime and the legal interests to be protected, this essay examines in detail the different opinions at home and abroad on the constitution of the crime and concludes that the crime is both committed and committed. In addition, this article also discusses the issue of how to condemn the crime of common crime. Finally, combining the discussion of the above problems, and then from the legislative point of view of the existence of the provisions of the defects and conflicts with the applicable law and the application of the existing problems in order to promote China’s criminal defense system to further improve.