辯護衝突中的意見獨立原則：以認罪認罰案件為中心

The Principle of Defense Counsel's independent Opinion of Resolving the Disagreements between Counsel and the Defendant: from the Perspective of the Cases of Pleading Guilty and Accepting Penalty

我國辯護制度本身已暗含有疏解不同辯護主體意見衝突的基本思路──意見獨立原則，即辯護人在經過充分溝通仍與被追訴人無法達成共識時，只要被追訴人不選擇退出機制，就可堅持不同的辯護意見。意見獨立原則同樣適用于認罪認罰案件辯護。辯護人在認罪認罰等問題上提出不同意見，不僅不會侵犯被追訴人自主認罪認罰的權利，還更加有利于實現認罪認罰案件的有效辯護。對于認罪、認罰、程序選擇等不同議題，意見獨立原則有不同的實施機制和法律效果。當前，意見獨立原則的踐行尚面臨認罪認罰勸說失當、辯護人及值班律師立場異化、辯護效果失控等幾種潛在風險，需要進一步明確底線，完善防控機制。

China's defense system itself implies the principle of defense counsel's independent opinion of resolving the disagreements between counsel and the defendant, that is, a defense counsel may insist on different defense opinions when he could not reach an understanding with the defendant after communication. The principle can also be applied to the cases of pleading guilty and accepting penalty. A defense counsel has the right to put forward different opinions on issues such as pleading guilty and accepting penalty, which not only does not violate the criminal defendant's right to control the case, but also promotes the realization of effective defense in the cases of pleading guilty and accepting penalty. The principle of defense counsel's independent opinion has different implementation mechanisms and legal effects for different issues. Currently, the implementation of the principle also faces some potential risks such as improper persuasion, position alienation of defense counsel, deterioration of defense effect and so on. So it is urgent to perfect the related basic rules and construct the prevention and control mechanism.