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无效律师协助制度是一项救济被告权利、确保公正审判的诉讼制度。受一系列错案反映出辩护质量问题的影响,英国上诉法院于20世纪80年代末开始关注无效律师协助问题。英国无效律师协助标准经历从着重关注律师不称职行为,到着重关注行为的后果,再到与欧洲人权法院标准契合的发展历程。无效律师协助表现形式一般包括:律师准备不充分、法律建议存在错误或者不能令人满意、未能传唤证人、出庭辩护的标准和对被告的司法保护不充分。因律师辩护实践与法院态度的紧张关系,英国无效律师协助制度也饱受批评。随着辩护律师权利的扩张和控辩对抗的加强,我国有必要逐步建立无效律师协助制度。参考英国经验,我国构建该制度首先可赋予被告人针对无效律师协助的上诉权且法院应将该上诉请求纳入二审审判范围;其次是确立合理的无效律师协助标准;另外,还应注意该制度与律师职业规范、辩护质量保障等制度的协调。
The invalid lawyer assistance system is a litigation system that safeguards the rights of defendants and ensures fair trial. Affected by a series of misstatements reflecting the quality of defense issues, the UK Court of Appeal began to look at invalid lawyers’ assistance in the late 1980s. Invalid lawyers in the UK assist in standardizing their experiences by focusing on the lawyer’s incompetence, focusing on the consequences of the act, to the development that is consistent with the standards of the European Court of Human Rights. Invalid lawyer assistance manifestations generally include: inadequate preparation of lawyers, mistakes or unsatisfactory legal advice, failure to call witnesses, standards of court appearance and insufficient judicial protection of the accused. Because of the tension between lawyer defense practice and court attitude, the system of British invalid lawyer assistance has also been criticized. With the expansion of defense lawyer’s rights and the confrontation between prosecution and defense, it is necessary for our country to gradually establish an invalid lawyer assistance system. Reference to the British experience, the system of our country to build the system can first be given to the accused for invalid lawyers appeal right and the court should appeal the appeal into the trial of second instance; followed by the establishment of a reasonable standard of assistance lawyers; In addition, Professional norms, the quality of defense and other security system coordination.