未完成的“平等武装”刑辩律师非知识技艺理性的养成

“Equality of Arms” unaccomplished The Making of the Counter-intellectual Practical Reason of the Chinese Criminal Defense Lawyers

控辩平等武装是正当程序理论的基础定理之一。1979—2012年,立法持续对刑事辩护注入攻防对抗权利,但刑辩质量并未因输入而获得等量输出。扩大外部制度供给效能不高的初始原因在于刑辩律师职业的浅准入门槛、低知识壁垒及由此产生的低收益回报和优秀人员的逆向选择。律师结成律所,主要以成本核算为主导因素,这使得律所始终是一个弱集合体。与"检察一体化"原则下以组织方式出现的公诉机关相比,原子化的刑辩律师对抗力量不足。在单一利润目标追求下,律师将更多精力用于报价、开发案源和社交,知识更新缓慢。律师在成本压力下"什么案件都办",专业化程度较难提升。刑辩效果难以检测等因素,亦对刑辩律师产生较弱激励,由此导致部分刑辩律师工于较多非知识性技艺活动,刑辩产品品质降低。

＂Equality of arms＂ between the prosecution and the accused is one of the fundamental prin- ciples of the due process theory. While from 1979 to 2012 the criminal defense bar in China had been in- creasingly empowered by legislations enacting new procedural rights for criminal defendants, the quality of defense lawyering had not seen improvements of a corresponding scale. The expanding market supply of criminal defense lawyers did not lead to their greater effectiveness, which may be attributed primarily to the profession＇s low entry threshold and knowledge barrier, resulting in the low return rate of criminal defense work and high quality lawyers~ opting out of the market. Given that criminal lawyers in China as- sociate to set up firms primarily for the purpose of cost sharing, firms specialized in criminal defense work typically are of weak organizational solidarity. Facing in court prosecutors that operate with full in- stitutional support under the principle of ＂integrated prosecution work,＂ atomic defense lawyers expect- edly have only inadequate firepower. Being exclusively profit--driven, defense lawyers devote much more of their time and energy to forming pricing strategies, searching for cases and networking than to upgra- ding their legal knowledge and skills. To cover cost, many lawyers have to take whatever kind of cases that may come before them, and as a result can hardly specialize. The difficulties in evaluating the quality of criminal defense lawyering also result in limited incentives for lawyers to invest in greater legal expert- ise; they spend, instead, most of their time on activities that are not intellectual nor law--related,and the quality of defense tawyering declined.