未完成的“平等武裝”－－刑辯律師非知識技藝理性的養成

Equality of Arms' unaccomplished The Making of the Counter- intellectual Practical Reason of the Chinese Criminal Defense Lawyers

控辯平等武裝是正當程序理論的基礎定理之一。1979～2012年，立法持續對刑 事辯護注入攻防對抗權利，但刑辯質量並未因輸入而獲得等量輸出。擴大外部制度供給效能不高的初始原因在於刑辯律師職業的淺准入門檻、低知識壁壘及由此產生的低收益回報和優秀人員的逆向選擇。律師結成律所，主要以成本核算為主導因素，這使得律所始終是一個弱集合體。與“檢察一體化”原則下以組織方式出現的公訴機關相比，原子化的刑辯律師對抗力量不足。在單一利潤目標追求下，律師將更多精力用於報價、開發案源和社交，知識更新緩慢。律 師在成本壓力下“什麼案件都辦”，專業化程度較難提升。刑辯效果難以檢測等因素，亦對刑辯律師產生較弱激勵，由此導致部分刑辯律師工於較多非知識性技藝活動，刑辯產品品質降低。

Equality of arms' between the prosecution and the accused is one of the fundamental principles of the due process theory. While from 1979 to 2012 the criminal defense bar in China had been increasingly empowered by legislations enacting new procedural rights for criminal defendants, the quality of defense lawyering had not seen improvements of a corresponding scale. The expanding market supply of criminal defense lawyers did not lead to their greater effectiveness, which may be attributed primarily to the profession's low entry threshold and knowledge barrier, resulting in the low return rate of criminal defense work and high quality lawyers' opting out of the market. Given that criminal lawyers in China associate to set up firms primarily for the purpose of cost sharing, firms specialized in criminal defense work typically are of weak organizational solidarity. Facing in court prosecutors that operate with full institutional support under the principle of 'integrated prosecution work,' atomic defense lawyers expectedly have only inadequate firepower. Being exclusively profit-driven, defense lawyers devote much more of their time and energy to forming pricing strategies, searching for cases and networking than to upgrading their legal knowledge and skills. To cover cost, many lawyers have to take whatever kind of cases that may come before them, and as a result can hardly specialize. The difficulties in evaluating the quality of criminal defense lawyering also result in limited incentives for lawyers to invest in greater legal expertise; they spend, instead, most of their time on activities that are not intellectual nor law-related, and the quality of defense lawyering declined.