值班律师参与认罪认罚案件的实践性反思

Reflection on the Participation of the Duty Lawyers in Leniency System Based on Admission of Guilt and Acceptance of Punishment

在2018年《刑事诉讼法》已经明确区分值班律师与辩护律师的前提下,针对试点实务中暴露出的若干难题,立法者应当摆正值班律师与被追诉人的关系。考虑到一般意义的辩护理论很难被直接套用到值班律师制度中,我们可以借鉴协同性司法理念中的沟通、合作因素,进一步拓宽协同性辩护的应用范围,探讨协同性法律帮助的适用性,在充分保证被追诉人自主行使辩护权的积极性的基础上,确定值班律师负有协助被追诉人了解、理解认罪认罚从宽制度及其法律后果的职能定位,引导辩方内部进行及时的有效的互动并形成一致的意见,实现认罪认罚案件的有效法律帮助。

Under the premise that the Criminal Procedure Law of 2018 has clearly distinguished between duty lawyers and defense lawyers,the legislators should carefully clarify the relationship between the duty lawyer and the prosecuted person.Considering that the general theory of defense is difficult to apply to the duty lawyer system,we can leam from the communication and cooperation factors of the collaborative justice concept,further broaden the application scope and explore the applicability of the collaborative legal help.On the basis of ensuring the enthusiasm of the prosecutedto exercise the right to defend independently,the duty lawyer is determined to assist the accused in understanding and understanding the functional orientation of the confession and punishment system,and guiding the legal consequences,and guiding the defense to conduct timely and effectively to achieve effective legal assistance.