认罪认罚案件中，有效辩护对于确保当事人的自愿性、量刑过程公正性发挥着关键作用，对于维持认罪认罚从宽制度的正当运行，推进适用制度的案件实现庭审实质化，促进司法公正和效率平衡有着不可或缺的作用。故需要在认罪认罚从宽制度中实现有效辩护，进而又产生了如何实现的问题。本文认为可借鉴美国保障有效辩护权的经验，促进有效辩护在认罪认罚案件中的实现。鉴于学界对有效辩护的内涵存在不同解读，对于我国是否可以引入保障有效辩护的无效辩护制度存在分歧，所以本文对美国有效辩护制度的发展进行了回溯，以便在把握其内涵和制度逻辑的基础上展开讨论。经梳理和分析发现，美国有效辩护权的核心内容是律师提供专业有效的法律帮助，不因律师不称职或公权力干预导致被告难以充分行使辩护权。美国为落实有效辩护权，建立了无效辩护制度。这一制度通过无效辩护的双重标准判断无效辩护情形，并通过程序性的制裁措施救济被告人因无效辩护遭受的权利损失。结合梳理归纳的结果，分析《刑事诉讼法》第11条“被告人有权获得辩护”和保障辩护权的相关法律规范发现：我国法律中存在有效辩护的基本内涵，并存在救济公权力干预型无效辩护的程序性制裁机制和禁止利益冲突型无效辩护的立场，只是对于律师失职型无效辩护在制度和意识上都还有待加强。认罪认罚制度在运行过程中出现了值班律师制度形式化、律师法律服务缺乏实效性、控辩协商不充分等有效辩护不足的问题。这些问题是律师缺乏专业能力、履职积极性不高、有关部门司法不严等原因造成的。律师作为有效辩护的主体发挥着关键作用，而认罪认罚案件的辩护工作多由值班律师以法律帮助的形式完成。我国司法环境下，值班律师模糊的定位导致有效辩护充分性的问题更为突出，故而明确其辩护人的法律定位并完善制度是实现有效辩护的重要路径。应当调整值班律师参与案件的条件，以诉讼权利支撑律师参与量刑协商的充分性，引导的同时建立多元化激励机制鼓励律师积极履职，多管齐下地促进值班律师发挥应有的制度功效。无救济则无权利。为进一步保障认罪认罚程序中辩护权行使的有效性，本文试图结合认罪认罚制度的特点梳理无效辩护类型，建立针对律师失职型无效辩护的判断标准，并通过已有的程序性制裁对无效辩护情形展开全面的审查和救济。完善无效辩护制度其实是在我国职权主义模式下强化法院责任，从而确保律师辩护在制度运行过程当中的有效性。
In the cases of guilty plea and punishment, effective assistance of counsel is essential in ensuring the voluntariness of the parties and the fairness of the sentencing process. It also plays an indispensable role in maintaining the proper operation of the Leniency System of Confession and Punishment, promoting the substantiation of court trials in relevant cases and bolstering the balance between judicial justice and efficiency; therefore, it is necessary to implement effective assistance of counsel in the Leniency System of Confession and Punishment.This paper argues that by learning from the experience of protecting the right to effective assistance of counsel in the United States, we can promote the realization of the right to defense in the cases of confession and punishment. In view of the different interpretations on the connotation for effective assistance of counsel in academic circles, there are debates on whether or not to introduce effective assistance of counsel and ineffective assistance systems in China; thus, using institutional logic and connotation as the basis for discussion, it is necessary to retrospect the development of effective assistance of counsel. It is found that the core content of the right to effective assistance of counsel in the United States is that lawyers provide professional and effective legal assistance, and the defendant's defense rights are not compromised due to the incompetence of lawyers or the interference of public power. In order to implement the right to effective assistance, the United States has established an ineffective assistance of counsel system. This system judges the situation of ineffective assistance of counsel through the two-prong test standard of ineffective assistance of counsel, and relieves the defendant's loss of rights due to such assistance through procedural sanctions. Combined with the relevant sorting and the analysis of Article 11 of the criminal procedure law "the defendant has the right to defense" and the relevant legal norms to protect the right to defense, it is found that: There is the basic connotation of effective assistance of counsel in China's law, as well as procedural sanctions mechanism to relieve the ineffective assistance of counsel when public power intervention occurs, and the position to prohibit ineffective assistance of counsel while there is a conflict of interest. However, there is need to strengthen the institution and consciousness in the case of a lawyers' dereliction of duty in ineffective assistance of counsel.While the Leniency System of Confession and Punishment is in action, issues with insufficient effective assistance of counsel emerge, such as the formalization of the lawyer on duty system, the lack of effectiveness of lawyers' legal services, and insufficient consultation between prosecution and defense. These problems are influenced by the lawyers' lack of professional ability, low enthusiasm in performing their duties, lax administration of justice by relevant departments etc. Lawyers are the main body of effective assistance, and the defense work of plea and punishment cases is mostly completed by lawyers on duty in the form of legal help. In China's judicial environment, the problem of insufficient effective assistance caused by the unclear positioning of lawyers on duty is more prominent. Therefore, clarifying the legal position of lawyers on duty as defenders and improving the system is an important way to realize effective assistance. We should adjust the conditions for lawyers on duty to participate in cases, protect the basic litigation rights, ensure the adequacy of lawyers on duty to participate in sentencing negotiations, guide lawyers on duty to perform their duties and establish a work incentive mechanism, so as to promote lawyers on duty to give full play to their due institutional effectiveness.No remedy, no right. In order to further ensure the exercise of the right of defense in the procedure of confession and punishment, this paper attempts to combine the characteristics of the leniency system, sort out the types of ineffective assistance of counsel, establish the judgment standard for lawyers' dereliction of duty, and carry out a comprehensive review the different positions of ineffective assistance of counsel, through the existing procedural sanctions. Perfecting the ineffective assistance of counsel system is, indeed, to establish the court responsibility under the mode of authority in China, so as to ensure the effective assistance of counsel in the Leniency System of Confession and Punishment.
