摘要
值班律师对于完善法律援助体系,保障被追诉人诉讼权利的意义不言而喻。随着值班律师写入《中华人民共和国刑事诉讼法》及司法实践的深入推进,立法关于值班律师身份定位不明的问题逐步显现,由此产生了值班律师身份是“法律帮助者”还是“辩护人”的理论争议。通过文义解释得知,值班律师角色不能被生硬解释为“辩护人”。体系解释论下的值班律师角色也应定位为“法律帮助者”。立法意图的深层追问则清晰表明,“法律帮助者”只是值班律师身份定位的隐喻而已,对其正确理解应当充分回应当前司法体制改革“效率优先、繁简分流”的合理关切。更进一步通过契约论分析,值班律师“法律帮助者”称谓下的真实角色应是兼顾国家需要与个人利益的特殊法律帮助人。
The significance of the system design of duty lawyers is self-evident in improving the legal aid system and guaranteeing the human rights of the criminal defendants in judicature.With the inclusion of duty lawyers in the Criminal Procedure Law and the deepening of judicial practice,the problem of unclear identity positioning of duty lawyers in legislation have emerged,resulting in the theoretical controversy over whether duty lawyers should be identified as"legal helpers"or"defenders".Some scholars have proposed a compromise solution of"quasi-defenders"where duty lawyers are given different identities according to different stages of litigation.However,the foundation of this theory cannot stand up to scrutiny.For this reason,based on the macro background of this system,the problem can be solved by carefully studying the laws and regulations related to China’s duty lawyers from the source through three commonly used methods in legal hermeneutics,namely,textual interpretation,constructive interpretation and purposive approach.In terms of textual interpretation,on the one hand,lawyers constitute a category included in the defenders and defenders cannot be simply interpreted as"lawyers".Thus,from the textual interpretation,sensu stricto,duty lawyers cannot be synonymous with defenders.On the other hand,if"duty lawyers"in the investigation stage are interpreted as"defenders"by expansion,it will lead to not only chronological differences in the understanding of the same concept in the Criminal Procedure Law,but also the embarrassing situation where a defense lawyer cannot defend cases in court after interpretation.As for constructive interpretation,it is found in national judicial interpretation documents that duty lawyers are independently identified and that legal help is obviously different from defense when it concerns the content of legal service.Moreover,several typical local documents are also consistent with the spirit of the central documents.Duty lawyers are not"defenders"and"legal help"is only a specific type of legal service.The deep inquiry into the legislative purpose has shown that duty lawyers in China serve to streamline the handling of criminal cases,and this has a close relationship with the trial-centered system,plea bargaining,expedited criminal procedure and other systems.Therefore,their real identity is not just legal helpers who provide legal service for criminal suspects.Through the analysis of plea-bargaining procedure—the main context where the legal help provided by duty lawyers in China plays a role,it can be seen that duty lawyers bridge the gap between the public authorities and the accused in the process of legal hel Specifically,the process of plea bargaining under the legal help of duty lawyers can fully embody the spirit of the contract,i.e.,"reaching consensus and exercising rights based on free will",and help the state and the accused rationally allocate and bear uncertain criminal justice risks so as to achieve win-win cooperation between the two sides.In conclusion,the actual identity of duty lawyers in China should be special legal helpers who balance the needs of the state and the interests of individuals.The clarification of this identity is more conducive to the protection of human rights in judicature of the accused.
作者
自正法
刘小庆
ZI Zhengfa;LIU Xiaoqing(School of Law,Chongqing University;School of Discipline Inspection and Supervision,Sichuan Normal University)
出处
《人权法学》
2022年第5期68-84,153,154,共19页
Journal of Human Rights Law
基金
国家社科基金一般项目(21BFX182)
最高人民检察院检察理论研究课题(GJ2022C29)。
关键词
值班律师
文义解释
体系解释
协商
特殊法律帮助人
human rights in judicature
duty lawyers
textual interpretation
constructive interpretation
contract
the special legal helper
