法学研究

文章摘要

被告人与律师之间的辩护冲突及其解决机制

Defense Conflict between the Accused and His Attorney and its Solution Mechanism

DOI：

中文关键词: 辩护冲突;当事人主导辩护;律师独立辩护;相对独立;辩护协商

英文关键词: defense conflict;litigant-oriented defense;independent attorney defense;relative independence;communication between the attorney and the accused

基金项目:

作者	单位
韩旭	四川省社会科学院法学研究所

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中文摘要:

被告人与其辩护律师之间的辩护冲突是我国辩护实践中的一个突出问题，这一问题无论在理论上还是在实践中都没有得到很好的解决。域外处理辩护冲突有两种模式：一种是以美国为代表的“当事人主导辩护”模式，另一种是大陆法系国家的“律师独立辩护”模式，两种模式分别有其形成的内在机理和运行逻辑，且各有利弊。我国辩护冲突的解决应当借鉴“律师独立辩护”模式之所长，实现从“绝对独立”向“相对独立”的转型，并通过“辩护协商”的工作机制预防和化解辩护冲突。

英文摘要:

The defense conflict between the accused and his attorney is a prominent problem in the defense practice in our country. There are two major modes to solve defense conflict in other countries, one is the “litigant-oriented” mode, which is represented by the U. S., and the other is the “independent attorney defense” mode, which mainly exists in Continental countries. The former mode stresses the loyalty of the attorney to his client, while the latter stresses the attorney’s duty to serve pubic interest and to promote the correct implementation of the law. Both modes have their respective theoretical basis and operational logic, and they are closely related to the different recognition of the attorney’s responsibility in the two law families as well as to their different cultural ideology and litigious systems.The solution of defense conflict in our country should mainly refer to the “independent attorney defense” mode in Continental countries. Taking in the merits of this mode, we should develop a mode which suits the unique situations in our country. We stress not only the independence of the attorney’s defense activity, but also the communication between the attorney and his client and the efficiency of defense activity, thus turn from “absolutely independent defense” to “relatively independent defense”. On the one hand, we should clarify that the independence of attorney is the basis of defense theories and practice in our country. On the other hand, we should be aware that excessively stressing the independence of attorney may bring about a lot of negative results in practice.In solving defense conflict, we should respect and reveal the will of the accused, especially the full expression of the defense grounds by the accused. When defense conflict happens, the attorney should have full communication with the accused which can urge the accused to give up his unreasonable ideas and accept his attorney’s reasonable opinions. Moreover, it can also help the attorney to modify his original defense opinions and tactics. If the attorney and the accused can not reach an agreement after communication, unless the accused clearly states his refusal to the attorney’s defense, the attorney can present his defense opinions according to his understanding of the facts and law, but such opinions should not harm the rightful interests of the accused.

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