刑事案件律师辩护何以全覆盖——以值班律师角色定位为中心的思考

How does the assistance of lawyer Cover All Criminal Cases——centered on the role of duty lawyer

刑事案件律师辩护全覆盖是人权保障在我国刑事司法领域的应然要求和实然需要。值班律师制度的建立,使得刑事案件中律师角色呈辩护律师和值班律师二元并存的特征。当前学界主张将值班律师“辩护人化”的代表性观点,作为一种理想化的“美好愿景”,虽然具有一定的应然合理性,但从现阶段及今后一定时期内的制度体系建设及其实现的角度看,则存在司法资源支撑不足、诱发律师及律师事务所违规执业、损害值班律师制度价值的现实困难和潜在风险。欲实现刑事案件律师辩护全覆盖,应在坚持值班律师属于特殊的法律援助律师这一角色定位的基础上,充分发挥值班律师的辩护前法律帮助功能;进一步发展完善法律援助制度,扩展法律援助范围;支持引导社会律师积极承担辩护律师职责,最终形成以委托辩护律师、法律援助辩护律师为主体,以值班律师为必要补充的律师辩护覆盖体系。

The full coverage of lawyers'assistance in criminal cases is the necessary requirement and actual need of human rights protection in the field of criminal justice in China.The establishment of the duty lawyer system makes the lawyer's role in criminal cases present the dual characteristics of defense lawyer and duty lawyer.At present,there is a representative view in the academic circle that duty lawyers should be regarded as"defenders”,as a kind of ideal"good vision",although has certain rationality ought to be,but from the perspective of system construction and its realization during this stage and the some time to come,there are practical difficulties and potential risks of insufficient support of judicial resources,inducing lawyers and law firms to practice illegally,and damaging the value of theduty lawyer system.In order to realize the full coverage of lawyers'assistance in criminal cases,it is necessary to give full play to the legal aid function of duty lawyers before the defense based on insisting that duty lawyers belong to special legal aid lawyers,We will further develop and improve the legal aid system and expand the scope of legal aid,support and guide social lawyers to actively assume the duties of defense lawyers,and eventually form a comprehensive defense system that entrusts defense lawyers and defense lawyers with legal aid as the main body,and duty lawyers as the necessary supplement.