中国刑事辩护制度发展的命运——以建立中国控辩协商制度为视角

从立法的角度看,中国刑事诉讼法的修改,无疑是中国刑事司法改革的一个巨大进步,甚至有人把它说成是刑事诉讼立法科学化、民主化的“一个重要里程碑”也不为过。然而,在司法实践中,就刑事诉讼法的修改对中国刑事辩护制度所引起的实质性影响而言,不仅不是巨大进步,而且是严重倒退。中国的刑事辩护正面临着让立法者始料不及的艰难困境。中国目前的辩护制度状况尚无法满足辩诉交易中国化的基本要求。只有实现中国辩护律师队伍的专业化,赋予中国律师必要的辩护权利和执业保障权利,才能使得辩诉交易在中国移植后,被告人有适格的辩护律师提供帮助,以确保其在控辩协商中得到公平对待。

The Fate for the Development of the Institution of Criminal Defense in China From the Perspective of the Establishment of the Institution of Prosecution-Defense Consultation in China

Judging the modification of Chinese Criminal Procedural Law from the perspective of legislation, the reform of Chinese criminal justice is undoubtedly a great progress and it is no exaggeration to call it “an important milestone” for the scientific and democratic pursuits of the criminal procedural legislation.However, in judicial practice, as far as the substantial impact of the modification of criminal procedural law on the Chinese institution of criminal defense is concerned, there has been serious regression instead of great progression. Criminal defense in China is facing unexpected difficulties of catching the legislators unprepared. The current state of the criminal defense institution in China now fails to meet the basic requirements of localizing defense transactions. Only by realizing the specialization of the defense lawyers in China providing necessary rights to defend and rights for legal practice to the lawyers in China can the defendants have qualified lawyers to defend them after the introduction of defense transaction into China so that they are sure of equal treatment in the prosecution-defense transactions.