中国辩护律师追责体制的变革问题

Reform of the Accountability System of Chinese Defense Lawyers

辩护律师追责二元体制有其历史演变的渊源和职业主义理论基石,该体制改革的现实基础有辩护律师规模扩张和身份转变、辩护律师刑事责任适用频繁和行政责任与纪律责任区分不明。在辩护律师追责范式的域外比较方面,美国的法院主导模式、德国的律协主导模式和日本的律协独享模式值得借鉴,律师协会完全自治缺乏普适性,由其享有部分监管权反映了现代法治国家分权治理的基本原则。辩护律师追责二元体制的改革路径包括二元体制下的司法化改革、实现宏观监管和微观追责相对独立、纪律责任与行政责任的有效衔接。辩护律师承担民事赔偿应纳入监管体系,实现从"二元"体制到"准三元"体制的转变,促进辩护律师追责体制的立体化。

Defense lawyers accountability for binary system has its historical evolution of the origin and the professional theory foundation, the reform is difficult to adapt to a defense lawyer scale expansion and identity change, lead to a defense lawyer criminal responsibility for frequent responsibility and administrative responsibility and discipline to distinguish the unknown aspects of realistic foundation. Outside of the defense attorney accountability paradigm comparison, the dominant modes of American court, Germany＇s jointed dominant mode, and the Japanese bar exclusive mode is worth reference, the all China lawyers association fully autonomous is lack of universality, which shall enjoy the right of some regulation reflecting the modern country under the rule of law, it is the basic principle of decentralized management. Defense lawyer accountability for the reform path of binary system including the binary system of judicial reform, implement macro regulation and micro accountability for relatively independent effective connection, discipline, responsibility and administrative responsibility. Necessary defense lawyers undertaking civil compensation should be brought into the regulatory system, it is realized from the dual system to quasi ternary system transformation, promoting the defense lawyer system of accountability for three dimensional.