程序性辯護的理論反思

Theoretical Reflection on the Procedural Defense

隨著我國刑事司法改革的推進，律師的程序性辯護已經具備特有的操作方式，也具備有別於其他辯護形態的獨立目標。但是，這種辯護在司法實踐中也陷入了困境。“非法證據”的模糊性、程序性裁判的附屬地位、檢察機關對證據資源的壟斷，以及相關證據規則的缺失，導致程序性辯護很難達到預期的訴訟效果。盡管律師界進行了積極的制度探索，卻仍然生存於制度夾縫中，難以擺脫困境。唯有進行全面的刑事司法改革，才能為程序性辯護提供基本的制度空間。

With the advancement of the criminal reform in China, lawyer's procedural defense has a unique operation mode, and also has an independent goal different from other forms of defense. However, this form of defense has also been caught in a dilemma in the judicial practice. Many reasons lead to the fact that it is difficult for procedural defense to achieve the desired results, such as, the unclear definition of illegal evidence, subordinate position of procedural justice, the monopoly of procurator in evidence resource and the lack of relevant evidence rales. Although lawyers have been actively exploring the system, they still live in the cracks of the system and hardly get rid of difficulties. Only when we carry out the comprehensive criminal judicial reform, can we provide the basic space of system for procedural defense.