论“唯庭审主义”之辩护模式

On the Trial-centered Defense Pattern

在中国的刑事辩护实践中,始终存在一种"唯庭审主义"的辩护模式。其主要特征是,律师把庭审环节当成辩护的主要场域,甚至唯一场域,而忽视庭审外尤其是庭审前的辩护活动。审前既不与检警机关设法沟通,也未能说服其作出任何有利于己方的决定;庭审辩护又以宣读根据卷宗撰写的辩护词为中心。这一模式的形成,与审前制度空间的局限、刑事辩护理念的偏差、审前辩护技能的欠缺有着紧密的关系,并导致了诸多消极的后果,尤其是辩护效果不佳,无法有效保障被追诉人的利益,也难以及时地促使检警机关自我纠偏。2012年刑事诉讼法赋予了律师在审前程序的辩护人地位,使得部分律师日益重视"辩护前移",并取得了初步成效。但要让中国律师彻底走出"唯庭审主义"的辩护模式,实现有效辩护尤其是有效果的辩护,至少还应从检察机关的审前定位和办案方式的诉讼化、律师权利的增设与保障、刑事法律援助的质量监管和值班律师的定位等诸多方面,对中国刑事辩护制度乃至刑事司法制度加以改革和完善。

There is a trial-centered defense pattern in the criminal defense practice of China for long. The key features of this pattern are that defense lawyers consider trial proceedings as the major and even the only field of defense, while ignoring the defense outside the court, especially before the trial;defense lawyers choose neither to communicate with police and procuratorate authorities, nor to persuade them to make any decision in favor of their own parties;the trial defense is also focused on reading out the already-written pleadings based on the case files of the prosecution. Many factors, such as the limitations of pre-trial system, the conceptual deviation of criminal defense, the absence of pre-trial defense skills, all lead to this pattern, which brings about numerous negative consequences, especially ineffective defense, failure to protect the interests of the accused, and incapability of prompting police and procuratorate organs to correct themselves in a timely manner. The Criminal Procedure Law amended in 2012 gave lawyers the status of defenders in the pre-trial procedure, which made some lawyers to pay more attention to the 'pre-trial defense' and achieved initial results. However, at least three aspects should be addressed to assist Chinese lawyers to get rid of the trial-centered criminal defense pattern, to achieve effective defense, and to reform and perfect Chinese criminal defense system and even criminal justice system, namely, the right pre-trail orientation and the substantiation of litigation of the procuratorial organs, the expansion and protection of the rights of defense lawyers, and the establishment of quality assurance system of criminal legal aid and duty counsel system.