值班律师职责的层次结构及动态调整

The Hierarchical Structure and Dynamic Adjustment of Duty Lawyer's Responsibilities

现有围绕值班律师的讨论中,值班律师的职能和职责常常被混为一谈。职能涉及到值班律师在整个刑事诉讼中的地位、功能以及和其他诉讼主体的关系,而职责指向值班律师所具体承担的义务。前者是宏观的、抽象的,回答“可以做什么”;后者是微观的、具体的,回答“应当做什么”。应当坚持值班律师职能的全面性和职责的有限性的二元划分:值班律师有权从事一切为依法有效履行辩护职能所必需的诉讼活动,但人都是有限的,立法者只能将最基础、最重要的法律帮助活动上升为值班律师的法定职责。作为最低形态的法律帮助,法律咨询是法律帮助的基础,强制措施是法律帮助的重点,提出意见是法律帮助的核心。值班律师的职责还应随被追诉人的需求、事实和证据情况、认罪认罚情况、量刑建议的妥当性等因素进行动态调整。

In the existing discussions about duty lawyers,the functions and responsibilities of duty lawyers are often confused.Function involves the status of the duty lawyer in the whole criminal procedure and the relationship with other litigation subjects.Responsibility refers to the specific obligations undertaken by the lawyer on duty.The former is macro and abstract,which solves"what could they do".The latter is micro and concrete,which solves"what should they do".We should adhere to the dual division of the comprehensive functions and limited responsibilities of duty lawyers.Duty lawyers shall have the right to engage in all litigation activities.But people are limited.Legislators can only raise the most basic and important legal assistance activities to the legal duties of duty lawyers.As the lowest form of legal assistance,legal consultation is the basis and coercive measures are the focus,and putting forward opinions serves as the core.Their duties should also be dynamically adjusted according to the needs of the accused,facts and evidence,confession and punishment,and the sentencing recommendations.