律师辩护全覆盖:规范分析与实效检验

Full Coverage of Counsel’s Defense:A Normative Analysis and a Test of Effectiveness

《关于开展刑事案件律师辩护全覆盖试点工作的办法》第二条规定的性质是法律拟制,这使原本不是律师辩护的其他辩护人辩护、值班律师法律帮助也被视为律师辩护。律师辩护全覆盖是指被追诉人在法律上有获得辩护律师辩护、其他辩护人辩护或值班律师法律帮助的权利。通过实证研究发现,律师辩护全覆盖试点显著提升了刑事案件的律师辩护率,尤其是新增指定辩护案件的规定效果明显。但改革试点工作也面临诸多难题,包括一些简易程序案件和速裁程序案件被告人没有获得值班律师法律帮助,指定辩护律师在举证、提出辩护意见、辩护意见采纳、定罪量刑辩护等方面发挥的作用明显弱于委托辩护律师,值班律师未能提供有效法律帮助等。律师辩护全覆盖改革的优化需要从以下方面着力:完善指定辩护的适用范围,确保通知法律帮助义务的充分履行,提高指定律师辩护的质量标准,明确有效法律帮助的认定标准。

Article 2 of the Measures for the Pilot Work of Full Coverage of Counsel’s Defense in Criminal Cases(hereinafter referred to as“the Pilot Measures”)provides for the specific content of full coverage of counsel’s defense,both in terms of a reiteration of the Criminal Procedure Law on entrusted defense,defense by legal aid,as well as instruction on assigning defense counsels or on-duty counsel’s legal assistance to those who do not have a defense counsel accordingly.Based on the theory of legal normative mimesis,the normative nature of article 2,paragraphs 2,3,and 4 of the Pilot Measures is a mimesis provision,which makes it possible for the defense of other defenders and the legal assistance of duty counsels,to be regarded as counsel’s defense.Full coverage of the counsel’s defense means that the prosecuted person is legally entitled to the counsel’s defense,the defense of other counsels,or the legal assistance of a duty counsel,which is a legal provision,not a concrete fact.Pilot projects for full defense coverage are also subject to the Criminal Procedure Law,and judicial practice that respects the right of the accused to refuse to defend himself enables full defense coverage that does not necessarily correspond to a 100 percent rate of defense by counsels.Empirical evidence has shown that the full coverage pilot has significantly increased the rate of counsel’s defense in criminal cases,particularly that the rate of counsel’s defense in criminal cases has increased mainly due to the provision on designated defense cases.However,the pilot also faced difficulties,including a small caseload of summary and expedited cases,inadequate implementation of the safeguard obligation by specialized authorities,limited increase in the rate of legal assistance by duty counsel due to waiver of rights,and the significantly weaker performance of designated defense counsel than entrusted defense counsel in the fields of burden of proof,defense advice,adoption of defense advice,and defense of conviction and sentencing,with a gap between the effectiveness of duty counsel’s legal assistance and that of effective legal assistance.The full coverage of counsel’s defense should be reformed and improved in four directions.First,the scope of applying designated defense should be optimized.In addition to considering due process factors such as trial procedures,the design of standards for applying designated defense should also consider sentencing factors,including the sentence handed down in the case.As a minimum international criminal justice norm,the right of the accused to effective legal assistance works at all stages of criminal proceedings,and the pilot phase of full coverage of counsel’s defense could,therefore,be moved forward to the investigative stage.Secondly,to ensure that the obligation to notify legal assistance is fully complied with.The meaning of the legal assistance provision should be understood as meaning that the defendant does not have to go through the application process to obtain legal assistance and that the court has an obligation to take the initiative to notify the duty counsel of the legal assistance provided in a summary and expeditious trial case where there is no defense unless he or she refuses the legal assistance.How rights are communicated should be easy to understand,and explanations of the meaning of legal provisions should be complete and adequate.Thirdly,the quality standards for defense by assigned counsel should be improved.The quality standards of assigned counsel in procedural defense should be raised appropriately.Fourthly,the criteria for determining effective legal assistance should be clarified.Effective legal assistance can be used as a bottom-line standard for legal assistance by duty counsel in the pilot project,and the criteria for its determination should be made clear.