程序性辩护的理论反思

Theoretical Reflection on the Procedural Defense

随着我国刑事司法改革的推进,律师的程序性辩护已经具备特有的操作方式,也具备有别于其他辩护形态的独立目标。但是,这种辩护在司法实践中也陷入了困境。"非法证据"的模糊性、程序性裁判的附属地位、检察机关对证据资源的垄断,以及相关证据规则的缺失,导致程序性辩护很难达到预期的诉讼效果。尽管律师界进行了积极的制度探索,却仍然生存于制度夹缝中,难以摆脱困境。唯有进行全面的刑事司法改革,才能为程序性辩护提供基本的制度空间。

With the advancement of the criminal reform in China,lawyer's procedural defense has a unique operation mode,and also has an independent goal different from other forms of defense.However,this form of defense has also been caught in a dilemma in the judicial practice.Many reasons lead to the fact that it is difficult for procedural defense to achieve the desired results,such as,the unclear definition of illegal evidence,subordinate position of procedural justice,the monopoly of procurator in evidence resource and the lack of relevant evidence rules.Although lawyers have been actively exploring the system,they still live in the cracks of the system and hardly get rid of difficulties.Only when we carry out the comprehensive criminal judicial reform,can we provide the basic space of system for procedural defense.