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强调律师独立进行辩护,不受被告人意志左右的“独立辩护人”理论存在逻辑上的缺陷,并引发了实践上的消极后果。基于有效辩护和尊重被告人自我决定权的理念,在协调被告人与辩护律师的关系上,有必要提倡一种新的思路。此种思路可以在理论上概括为权利保留原则。其中,被告人作为辩护权的权利主体,对直接影响自身关键性权益和道德自由的保留性权利享有最终的决定权。一旦被告人在权利行使上与辩护律师发生冲突,根据权利性质的不同,可以分别适用被告人主导型和协商型的解决模式。辩护律师与被告人的约定、被告人行为能力受限、被告人与辩护律师沟通不能以及权利行使违反律师法定义务则构成权利保留原则适用的例外情形。
Emphasizing that lawyers independently defend themselves against the “defendants” theory inherent in the defendant’s will have logical flaws and lead to practical negative consequences. Based on the concept of effective defense and respect for the defendant’s right of self-determination, it is necessary to advocate a new way of thinking in coordinating the relationship between the accused and the defense lawyer. This kind of thinking can be summarized in theory as the principle of right retention. Among them, the defendant, as the right subject of the right of defense, has the final authority over the reserved rights that directly affect their own key rights and moral freedom. Once the defendant conflicts with the defense lawyer in the exercise of his rights, depending on the nature of the rights, the defendant-led and the negotiated solutions may be applied separately. The agreement between the defense lawyer and the defendant, the limited ability of the accused, the failure of the defendant to communicate with the defense lawyer and the violation of the statutory obligation of the lawyer to exercise the right exception principle apply.