论“占坑式法援”及其治理

SOn the Phenomenon of “Enforced Legal Aid” and the Ways out

在近年来的一些热点案件中,办案机关强行为被追诉人指派法援律师,导致被追诉人或其近亲属无法通过委托律师进行辩护,这一法律援助制度的异化现象被称为“占坑式法援”。“占坑式法援”不利于保障被追诉人的自由意志和合法权益,也不利于法律援助资源的合理配置。之所以出现这种现象,可从办案机关、被追诉人、近亲属、制裁机制等多个角度找到原因。为避免出现“占坑式法援”,司法实践应向“选择式法援”转型,即被追诉人及其近亲属可以选择自行委托律师辩护,也可以选择接受法律援助辩护,并且这种选择权不受公检法等办案机关的限制。

In recent years, the case handling organs forcibly assign legal aid lawyers to the accused in some cases under public spotlight, which leaves the accused and his immediate family unable to entrust a lawyer by themselves. This phenomenon of the legal aid system at the moment is called “enforced legal aid”. “Enforced legal aid” is not conducive to safeguarding the free will and legitimate interests of the accused, nor is it conducive to the appropriate allocation of legal aid resources. The reasons for this phenomenon can be found from the perspectives of the case handling organs, the accused, the immediate family of the accused, and the mechanism of sanctions. “Enforced legal aid” should be transformed to “selective legal aid”, i.e., the accused and his immediate family are allowed to entrust a lawyer, or to accept legal aid, and this option is not to be interfered by any case handling organs.