辯護律師保密權的法教義學分析

運用霍菲爾德權利分析框架對辯護律師保密權進行分析，保密權的性質為豁免權，而非特權，保密權與保密義務之間並非簡單的平行共生關係，而是先後派生關係。委託人向律師主張保密請求權，律師承擔保密義務，先形成“委託人—律師”法律關係，後派生“律師—國家機關”法律關係。國家機關開展調查取證無權力改變律師對委託人的保密義務，律師擁有舉報作證豁免權，即保密權。真正決定案情信息是否保密的權利主體是委託人，而非辯護律師。保密權的理論溯源是刑事訴訟中的委託人擁有不被強迫自證其罪、獲得律師幫助以及一般人格權之保護等憲法性權利。在對保密權的性質和理論溯源作出教義化處理後，應回歸刑事訴訟法的條文語境，對保密權的適用前提、構成要件以及例外情形等進行教義化的語詞解釋和體系構建，就發現的問題，如律師保密與犯罪嫌疑人應如實回答條款的衝突、律師洩密與刑法追責、非法證據排除規則缺失等提出完善建議。

Using the Hohfeldian rights analysis framework to analyze the defense lawyer’s right to confidentiality, the nature of the right to confidentiality is immunity, not privilege. The relationship between the right to confidentiality and the obligation to keep confidentiality is not a simple parallel symbiosis, but a derivative relationship. The client claims the right to request confidentiality from the lawyer, and the lawyer assumes the obligation of confidentiality. The legal relationship of“client-lawyer”is first formed, and then the legal relationship of“lawyer-state agency”is derived. When state agencies conduct investigations and collect evidence, they have no power to change lawyers’confidentiality obligations towards their clients. Lawyers have immunity from reporting and testifying, that is, the right to confidentiality. The person with the right to truly decide whether case information is confidential is the client, not the defense lawyer. The theoretical origin of the right to confidentiality is that clients in criminal proceedings have constitutional rights such as not being forced to testify against themselves, obtaining help from lawyers, and protection of general personality rights. After making a doctrinal treatment of the nature and theoretical origin of the right to confidentiality, we should return to the context of the provisions of the Criminal Procedure Law and carry out a doctrinal explanation and system construction of the applicable prerequisites, constituent elements and exceptions of the right to confidentiality and provide suggestions to such issues as the conflict between lawyers’confidentiality and the fact that criminal suspects should answer truthfully, lawyers’leaks and its potential criminal law accountability, and the lack of illegal evidence exclusion rules.