回归法律规范：刑事值班律师制度适用问题再反思
贾志强回归法律规范：刑事值班律师制度适用问题再反思
Rethinking on the Application of the Criminal Duty Lawyer System
期刊名称：《法学研究》
期刊年份：
作者：贾志强
单位：
中文关键词：值班律师;介入案件;阅卷权;认罪认罚从宽
英文关键词：duty lawyer; intervention in a case; right to review files; leniency to those who admit their guilt and accept punishment
中文摘要：
目前我国刑事值班律师制度规范背后折射出有权机关抑制辩方权利的倾向。根据法律规范意旨，只要被追诉人没有辩护人，国家就应“强制指派”值班律师介入案件。将“约见”解读为国家指派值班律师需以被追诉人申请为前提，这混淆了律师会见与介入案件的关系，且将国家责任转嫁给个人，弱化了对被追诉人获得最低限度法律援助权利的保障。相关规范性文件将值班律师阅卷权能限定为“查阅”，但基于法律援助法第37条的文义、控辩平等之程序公正底线要求等因素，值班律师阅卷权能还应包括“摘抄”“复制”。《法律援助值班律师工作办法》第10条第2款规定，值班律师有量刑异议时，只要其认可犯罪嫌疑人认罪认罚的自愿性，就应在具结书上签字。这是对值班律师功能“见证化”的公开宣示，与2018年刑事诉讼法第201条的意旨以及值班律师实质性参与量刑协商的改革要求相矛盾。值班律师应被赋予拒绝签字的权利。“实质性参与”应是目前完善值班律师制度的基本方向。
英文摘要：
China's current duty lawyer laws reflect the authorities' inclination to suppress the rights of the defense party. Returning to the laws themselves, the state must appoint a duty lawyer to an accused who hasn't been represented. By interpreting "making an appointment with a duty lawyer" in the Legal Aid Law as meaning that the accused must apply in order to obtain legal assistance, the authorities confuse an interview with a lawyer and a lawyer's intervention in the case, thereby shifting the responsibility of the state to the individual and weakening the minimum safeguard for the right of the accused to legal assistance. Relevant judicial interpretations limit the duty lawyer's right to review files to "consulting". Based on the literary meaning of Article 37 of Legal Aid Law, the principle of equality of arms, etc., duty lawyer should also have the right to "extract" and "duplicate" the case files. Article 14 Paragraph 2 of the Measures for the Work on Legal Aid Duty Lawyers provides that, after confirming that the criminal suspect has voluntarily admitted guilt and accepted punishment, a duty lawyer must sign the recognizance despite his objection to the sentencing recommendation. This is a public declaration of the "witness" function of the duty lawyer, which contradicts the legislative intent of Article 201 of the Criminal Procedure Law and the reform requirement of substantive participation by lawyers in negotiations. Duty lawyer should have the right to refuse to sign the recognizance. Substantive participation should be the basic direction of current reform of the duty lawyer system.
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