法援辯護與委託辯護順序問題的機理與根源

The Mechanism and Roots of Sequential Conflicts between Legal Aid Defense and Entrusted Defense

近年來，在一系列有較大影響的案件中屢屢出現法援辯護與近親屬代為委託辯護之間發生衝突的現象。這一現象使我國傳統的“委託辯護優先原則” 受到較大衝擊。從系列典型案例入手，可以對法援辯護與委託辯護發生衝突的情形進行概括。目前既有的制度和理論回應並不能完全疏解這種衝突。衝突的形成是以犯罪嫌疑人和被告人的信息隔離為主因，犯罪嫌疑人、被告人與近親屬及其委託律師之間的信息不對稱為衝突的發生提供了條件。從根源上說，法援辯護與委託辯護的衝突是律師忠誠義務與公益義務發生衝突的結果。就律師熱誠辯護而言，不能僅僅從懲戒角度對其加以禁止，還要從辯方權利保障和程序性制裁等角度來加以疏解。

In recent years, there have been frequent conflicts between legal aid defense and family entrusted defense in a series of influential cases. This phenomenon has dealt a significant blow to the traditional principle of Client Priority established in China, and has also had a negative impact on the credibility of judicial organs and the public welfare of legal aid. We can summarize the ecology of conflicts between legal aid defense and entrusted defense from a series of typical cases. The formation of the conflict is based on the information isolation between the suspect and the defendant, and the asymmetric information between the suspect/ defendant, their close relatives and their entrusted lawyers provides conditions for the conflict. Fundamentally speaking, the conflict between legal aid defense and entrusted defense is a product of the conflict between the excessive enthusiasm of the entrusted lawyer for defense and the smooth handling of the case by the investigating party. It is the result of the conflict between the loyalty obligation of the lawyer and the public interest obligation. Overly enthusiastic defense by lawyers cannot be prohibited solely from the perspective of disciplinary systems, but should also be alleviated from the perspectives of defense rights protection and procedural sanctions.