論英國無效律師協助制度及其借鑒意義

Ineffective Assistance of Counsel in the United Kingdom and Reference

無效律師協助制度是一項救濟被告權利、確保公正審判的訴訟制度。受一系列錯案反映出辯護品質問題的影響，英國上訴法院於20世紀80年代末開始關注無效律師協助問題。英國無效律師協助標準經歷從著重關注律師不稱職行為，到著重關注行為的後果，再到與歐洲人權法院標準契合的發展歷程。無效律師協助表現形式一般包括：律師準備不充分、法律建議存在錯誤或者不能令人滿意、未能傳喚證人、出庭辯護的標準和對被告的司法保護不充分。因律師辯護實踐與法院態度的緊張關係，英國無效律師協助制度也飽受批評。隨著辯護律師權利的擴張和控辯對抗的加強，我國有必要逐步建立無效律師協助制度。參考英國經驗，我國構建該制度首先可賦予被告人針對無效律師協助的上訴權且法院應將該上訴請求納入二審審判範圍；其次是確立合理的無效律師協助標準；另外，還應注意該制度與律師職業規範、辯護品質保障等制度的協調。

Ineffective assistance of counsel was a key system to relief the rights of the accused and to ensure a fair trial. The Court of Appeal began to focus on the problem of ineffective assistance of counsel in the late eighties of the last century by reflection of a series of misjudged cases. Ineffective assistance of counsel standards in United Kingdom had experienced from focusing on the incompetent behavior to the consequences of behavior, and then to fit with the standards of European Court of Human Rights. There were many forms of ineffective assistance of counsel, including inadequate preparation of counsel，failure to give proper legal advice，failure to call witnesses，the standard of presentation and insufficient protection by the judiciary. However, this system was also criticized in the United Kingdom. With the expansion of the rights of the defense lawyers and the strengthening of confrontation between the prosecution and the defense, it is necessary to gradually establish the system of ineffective assistance of counsel. We should firstly endow the right of appeal to the accused against ineffective assistance of counsel, and it must be included in the range of trail. Secondly, we should establish a reasonable standard of ineffective assistance of counsel. Whats more, we should coordinate this system with the professional norms of lawyers and the system of defense quality assurance.