未完成的“平等武装”刑辩律师非知识技艺理性的养成

发布时间：2018-12-16 16:28

【摘要】：控辩平等武装是正当程序理论的基础定理之一。1979—2012年,立法持续对刑事辩护注入攻防对抗权利,但刑辩质量并未因输入而获得等量输出。扩大外部制度供给效能不高的初始原因在于刑辩律师职业的浅准入门槛、低知识壁垒及由此产生的低收益回报和优秀人员的逆向选择。律师结成律所,主要以成本核算为主导因素,这使得律所始终是一个弱集合体。与"检察一体化"原则下以组织方式出现的公诉机关相比,原子化的刑辩律师对抗力量不足。在单一利润目标追求下,律师将更多精力用于报价、开发案源和社交,知识更新缓慢。律师在成本压力下"什么案件都办",专业化程度较难提升。刑辩效果难以检测等因素,亦对刑辩律师产生较弱激励,由此导致部分刑辩律师工于较多非知识性技艺活动,刑辩产品品质降低。
[Abstract]:The equality of prosecution and defense is one of the basic theorems of the theory of due process. From 1979 to 2012, the legislation continued to inject the right of attack and defense to the criminal defense, but the quality of the criminal defense was not obtained the same output because of the input. The initial reasons for the low efficiency of expanding the external institutional supply lie in the shallow entry threshold of criminal defense lawyers, the low barriers to knowledge and the resulting low returns and adverse selection of outstanding personnel. Lawyers form a firm, mainly based on cost accounting, which makes the firm always a weak aggregate. Compared with the public prosecution organs under the principle of "procuratorial integration", the atomized criminal defense lawyers are not strong enough. In the pursuit of a single profit goal, lawyers are focusing more on quoting, developing the source and socializing, and slowly updating their knowledge. Under the pressure of cost, lawyers "do whatever cases", the degree of specialization is difficult to improve. It is difficult to detect the effect of criminal defense and other factors, but also has a weaker incentive to criminal defense lawyers, which leads to some criminal defense lawyers work in more non-intellectual activities, and the quality of criminal defense products is reduced.
【作者单位】：上海同济大学法学院;
【基金】：同济大学中央高校基本科研业务费项目(项目编号:0701219051)研究成果
【分类号】：D925.2

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