三重悖离:认罪认罚从宽程序中值班律师制度的困境  

Triple Deviation: The Predicament of Duty Lawyer in the Lenient Punishment System of Guilty Admission and Punishment Acceptance

作　　者：汪海燕[1] Wang Haiyan

机构地区：[1]中国政法大学刑事司法学院

出　　处：《法学杂志》2019年第12期12-23,共12页Law Science Magazine

摘　　要：值班律师制度的设立是认罪认罚从宽制度完善的内在要求,对于保障认罪认罚从宽的自愿性、认罪认罚具结的真实性与合法性发挥重要作用。然而,该制度在法律和实践层面存在诸多问题。法律将值班律师定位为法律帮助者与权利保障人,但在实践中其往往蜕变为认罪认罚从宽程序合法性的见证人与背书者;法律要求值班律师发挥程序选择建议、对案件处理提出意见等重要作用,却没有赋予其必要的诉讼权利予以支撑;同时,值班律师的职责与收益、风险等严重悖离。究其根由,是值班律师作为权利保障者与权力配合者角色定位交织,值班律师与辩护人的职能混同,本应政府承担的法律援助责任转为律师义务。法律除了应明确界定值班律师的身份、功能外,还应赋予其支撑功能的具体诉讼权利,并完善相关的法律援助体制。The establishment of the duty lawyers system is the internal requirement for the perfect of the lenient punishment system of guilty admission and punishment acceptance and plays an important role in guaranteeing the authenticity and the legitimacy of the confession and punishment. However, the system faces many problems in law and practice. The law defines the duty lawyer as the legal helper and the right guarantor, but in practice it is often transformed into the witness and the endorser of the lenient punishment system of guilty admission and punishment acceptance. The law requires the duty lawyer to play an important role in the selection of procedures and opinions on the handling of the case, but it does not give it the necessary litigation rights to support it. At the same time, the duties and risks of duty lawyers are seriously deviated. The root cause is that the role of duty lawyer as the guarantor of rights and the role of power coordinator is intertwined. The law mixes the functions of duty lawyer and defender. At the same time, the law converts the legal aid responsibility that should be assumed by the government into the duty of lawyer. In order to get out of the predicament, the law should not only clearly define the identity and function of the duty lawyer, but also give it the specific litigation rights to support the function, and improve the relevant legal aid system.

关 键 词：认罪认罚从宽 值班律师 困境 改革 

分 类 号：D92[政治法律—法学]