我國刑事辯護存在的問題及其對策-NUIGalway

1、Existing Problems and Strategy ofthe Criminal Defence in ChinaXu LanTingDefense is a series of actions that criminal suspect, defendant and their defendattorney refute and defend according to the accusation by the accusant. The right to be defended is a most basic and important right entitled to the

2、 defendant in the criminal proceedings. The criminal defend system, as an important aspecgt in the legal systems of the criminal proceedings of the modern rule-by-law countries, reflects the status ofa country s democracy and human rights and is established by the legislation of every country. Moreo

3、ver, the basic principle in the actions penal that the accused is entitled to be defended has been ascertained in the International Covenant on Civil and Political Rights established by the UN 1 and elaborated in the Basic Principles on theRole of Lawyers passed at the 8th Session of the UN s Meetin

4、g on Preventing Crimeand Treatment on Criminals 2 , thereupon an integrated minimuminternationalstandards on criminal defend systems comes into being.In our nation, as a basic system in criminal proceedings, criminal defend system has been established by the Constitution, the Criminal Procedures Law

5、 and the Act on Lawyer, especially the new Criminal Procedures Law enforced in 1997 marks a further progress in the legislation of criminal defending system. However, until now,the status of our nation s criminal defend is not satisfactory which can be indicated bya most simple index that the defend

6、ing rate that defense lawyers appear in court is very low. Even to say, the environment of criminal defense is deteriorated rather than improved. Why in the process of establishing a rule-by-law nation, the developmentof criminal defense does not accord with the modernization of legal system? What s

7、the problem of our nation s defense system? As for these problems, what shall we do? This thesis planes to probe into the above problems.一、 Problems Existed in Criminal Defense in ChinaThe low defending rate of criminal cases and that lawyers are reluctant toundertake criminal case show that the iss

8、ues existing in our nation s criminal defeis complicated and multi-aspect.（一） The problems analyzed at the judicial levelDirector of Criminal Committee, Beijing Lawyer Association.1 The 1984/50 Resolution of the UN Economic Council2 The Decision passed at the 8th Session of the UNs Meeting on Preven

9、ting Crime and Treatment on Criminals.1Judicature, as a series of actions during the enforcement of laws by relative executing organs, must be conducted in accordance with the stipulations of relatinglaws or acts. However, in the aspect, a number of organs that handle cases act by the indications of

10、 their internal departments and the judiciary explanations by every organ contradict laws or acts, which causes the relating stipulations null and the exertion of the legitimate rights to be defended by lawyers difficult.1、The right of the lawyers to meet with their clients is like to be nominal. Th

11、earticle 96 of the Criminal Procedures, Regulations on Issues during the process of enforcement of Criminal Procedures Law made by the six ministries and commissions and the relative explanations on laws or acts by the Supreme Court, the Supreme Procuratorate and the Public Security Ministry all sti

12、pulate that lawyers are entitled to meet with the criminal suspect and the defendant in custody. Except the case involving State secrets, the lawyer need not obtain the approval of the investigation organ and the relative organ must arrange the meeting in 48 hours since theapplication by the lawyer

13、for meeting. Differently, the relative organ must arrange the meeting in 5 days in the special case such as that involving gangdom. But in fact, the investigation organ usually does not arrange the meeting with excuses that the case involving state secrets, the case is special or the meeting need to

14、 be approved by thecompetent organ, or arranges the meeting but unreasonably limits lawyer rights to meet with the criminal suspect, such as strictly limiting the time or times of meeting, sends its people to be present at the meeting, or record or kinescope the meeting etc.2、The investigation and c

15、ollection of evidence by defense lawyer is confronted with difficulties. The article 37 of the Criminal Procedures Law stipulates theinvestigation and collection of evidence by defense lawyer, that is, Defense lawyers who collect information pertaining to the current case from the witnesses have to

16、get the consent of the witnesses, and if they plan to collect evidences from the victim, they have to get the consent of the competent organ or the victim. But in practice, itis ordinary that witnesses don t corporate in the investigation or collection, and the competent organ does not approve the c

17、ollection of evidences by the lawyers from the victim or the victim does not consent with the collection. When facing theseproblems, defenselawyers will be at the end of their wits.“ Such strict limitation onlawyers rightofinvestigationessentially makes the righttobe defendedimpracticable and collec

18、ting fact and evidence becomes impossible.3”3、The defense lawyer is facing difficulties in consulting judicial documents. The3 The Research on Problem and Countermeasures on the Implementation of Criminal Procedures Law, Fan ChongYi, China People s Public Security University Publication, 2001, P1062

19、article 36 of the Criminal Procedures Law stipulates that the defense lawyers may, from the date on which the Peoples Procuratorate begins to examine a case for prosecution, consult, extract and duplicate the judicial documents pertaining to thecurrent case and the technical verification material, a

20、nd“ Defense lawyers may, frothe date on which the Peoples Court accepts a case, consult, extract and duplicate the material of the facts of the crime accused in the current case. ”But in judicaturepractice, the rights necessary in the lawyer s practice is strictly limited. In the periodof examinatio

21、n of a case for prosecution, People Procuratorates of many regionsrequire lawyers get the approval from the competent organ if they want to consult thejudicial documents, or don t permit lawyers to consult with the excuse that the case isinvolved in State secrets, or refuse the consultation byreason

22、 that the duplicatingmachine doesnworkt. Even ifthe lawyer gets thepermission to consult thedocuments, only those published and inessential judicial documents and technicalverification material are available. While after the People Courts accepts the case,although defense lawyers are entitled to con

23、sult, extract and duplicate the material ofthe facts of the crime accused in the current case, yet since the duplicates of majorevidence attached to the case that the People s Procuratorate transfers to the PeopleCourt is not all the evidences, therefore, defense lawyers can not get all of the judic

24、ialdocuments including those favorable to the defendant.4、 The defense lawyers-securityself is challenged. Both the article 306 of theCriminal Law and the Criminal Procedures Law stipulate that lawyers shall notintentionally give false evidence. This prescription is reasonable, but leaving defensela

25、wyers at stake and the article 306 makes it possible that defense lawyers facingwith danger at any moment when defending for the criminal suspect or the defendant.After the enforcement of these two laws, defense lawyers are often falsely arrestedor taken into custody by the procuratorate organs. Tha

26、t defense lawyers securitfacing challenge impairs lawyer s public image and weaken lawyers enthusiasm toundertake criminal cases.This causes panic in defense lawyers and some defenselawyers even declare not to defend criminal cases.5、Besides, there are many problems such as applying for a guarantor

27、pendingtrial (most of the criminal suspect or the defendant are in custody and defenselawyers applications for guarantor pending trial are seldom approved), or defenselawyers defending opinions are seldom accepted ( although defense lawyers providean excellent defense of not-guilty, yet the verdicts

28、 of not-guilty is few and the rate of not-guilty defense is very low etc.（二） The problems analyzed at the legislative level3Compared with the countries with advanced legal system, the development ofour nation nomocracys modernization needs a long time. Although our nation s criminal defense system h

29、as achieved a great progress in the new Criminal Procedures Law of 1997, yet compared with the minimum international standards established in the international covenants signed by our nation such as the International Covenant on Civil and Political Rights of the UN and the Basic Principles on the Ro

30、le of Lawyers, the new Criminal Procedures Law of 1997 needs to be considered and improved.1 、 The status ofdefense lawyers inthe litigationduring the period ofinvestigation. The article 96 of the Criminal Procedures Law stipulates that after the criminal suspect is interrogated by an investigation

31、organ for the first time or from the day on which compulsory measures are adopted against him, he may appoint a lawyer to provide him with legal advice and to file petitions and complaints on his behalf.During the period of investigation, the criminal suspect may appoint defense lawyers to provide l

32、egal advice in advance. But there is no explicit prescription on the status of the defense lawyers in the litigation during the period of investigation. This blur in legislation causes the right of defense lawyers to provide legal advice in advance can not be implemented or be safeguarded.2、Compared

33、 with the previours legislation, the present legislation on the right ofdefense lawyers to consult the judicial documents even retrogresses. In order to reduce verdicts before the court session and to introduce into the principle of one bill of prosecution, the new Criminal Procedures Law of 1997 st

34、ipulates that when theprocuratorate organ transfers the case file to the People Court,s it need only toprovide the bill of prosecution and the attached list of evidence and a list of witnesses as well as duplicates or photos of major evidence and not all of the case file need to be transferred. This

35、 stipulation reduces the opportunity of the judge to get evidence, and at the same time, limits defense lawyers right to consult the judicial documents during the period of trial which makes the defense lawyers more strictly deprived andlimited to consult the case file than the stipulation of the Cr

36、iminal Procedures Law before amended.3、The limitation of legislation on the investigation and evidence collection bydefense lawyers is excessive. As for the investigation and evidence collection by defense lawyers, the article 37 of the Criminal Procedures Law stipulates thatDefense lawyers may, wit

37、h the consent of the witnesses or other units and individualsconcerned,collect information pertainingtothe current case from them.Withpermissionof the Peoples Procuratorate orthe Peoples Court and withtheconsent ofthe victim, his near relatives orthe witnesses provided by the victim,4defense lawyers

38、 may collect information pertaining to the current case from them. The article 44 of the Judiciary Explanations by the Supreme Court stipulates that when defense lawyers collect information pertaining to the current case from the witnesses or other units and individuals, if they can not get the cons

39、ent from them and apply tothe People s Court for collecting or obtaining the material, and if the People thinks it is necessary,the People Courts should accept the application. From theabove stipulations, we can see that although the present law stipulates the defense lawyers have the right to inves

40、tigate and collect evidence, yet they have to get the consent from the person or the unit investigated and get the permission from the People Procuratorates. Therefore, defense lawyers right to collect and investigate evidence is substantially deprived. And how can defense lawyers collect the favora

41、ble evidence for the defendant by this limited right ?4、The legislation does not prescribe the exemption of defense lawyers when theyundertake the case. The exemption of defense lawyers when they undertake the casemeans that defense lawyers action and speeches during the period of litigation willnot

42、 be prosecuted according to stipulations of laws. This is a basic right explicitly regulated in the Basic Principles on the Role of Lawyers, but there is no suchprescription in our nation s laws. And on the other hand, the article 306 of the presentCriminal Law stipulates the crime that the defender

43、, law agent destroys, falsifies evidence, threaten or lure witnesses to contravene facts, change their testimony or make false testimony. The principal part of this accusation is defender and law agent shouldered by lawyers. Undeniably, this is distinct discrimination in legislation.（三） The problems

44、 analyzed at the rule-of-law process levelCriminal defense, same with the systems of whole criminal procedures, is a litigation system for protecting human rights of the defendant. It is deeply rooted in the Western political culture and the construction of legal system. Even if our nation treats th

45、e establishment of a rule-by-law country as the aim of the development of the society during the process of constructing a modernized socialism, but it is undeniable that nomocracy is totally against our nation traditionals culture. As the criminal litigation system is concerned, due to the cultural

46、 tradition of the departmentalism of nation existing in our nation history for a long period and the influence by the ideology of ruling by proletariate after the erection of our country, the valuation of criminal litigation lays emphasis on punishing crime. Therefore, the ideology that criminal lit

47、igation is to protect the human rights of the criminal suspect and the5defendant is difficultto be accepted by the society in a short term. Thus, it isunavoidably that criminal defense is treated as a system to protect the bad man who commits a crime and is resisted unconsciously in the judicial pra

48、ctice.During the process of nomocracy of our nation, since our partial understanding on criminal defense and even the whole criminal litigation system, the orientation of the whole legislation is not accurate which, as the legislation is concerned, causes the unsatisfactory result of the design of c

49、riminal defense system no matter in the particulars of enforcement or in the orientation of the whole system.In short, the problems now existing in our nation criminals defense is complicate and multi-aspects. Execution of law in judicature is not strictly compliance with the relative stipulations w

50、hich cause the original intention of legislation not to be practical. And in legislation, it shows that the system itself is not consummate. But in the author s opinion, the most importandt deepestproblem is how to understand and treat the value of the system to protect human right in criminal defen

51、se and how to enforce the criminal defense system in the reform of whole judicial system.二、 The countermeasures for solving the problems in the criminal defenseWe have analyzed simply the existing problems in our nation s criminal defensefrom several aspects and pointed out the crux that causes thes

52、e problems is the understanding and orientation of the criminal defense system, the criminal procedures system and even the reform of the whole judicial system. The following is some advice on solution of these problems by clearing this crux.The criminal defense system is the basic system in the mod

53、ern criminal litigation.The evolution history of criminal litigation can be treated as the history of expanding4and strengthening criminal defense system. The modern criminal litigation is also be deemed as an act to protect human rights (including protecting the rights of the criminal suspect, the

54、defendant and the victim. But the most primary purpose of the modern criminal litigation is to protect the human rights of the defendant and limit the power of prosecution by the politic body to violate against the defendant humans rights.). And criminal defense system is the very proof to protect t

55、he defendant s human rights during criminal litigation. Only by taking this as the goal of the criminal defense and even the whole criminal litigation system, and changing idea that criminal defense is to protect the bad man and the whole criminal litigation system is4 Creation and Development: the

56、Compendium on Evolution of Criminal Defense System, Xie Youping, Legal Science, the first periodical of 20026a tool for the country to hit crimes, can we build up the criminal litigation system on this solid base that everything is ruled by law and experience the fascinate eloquence in the criminal

57、defense.Of course, the research and solution to the problems eventually shall be put into practice rather not just a theory. Knowing the crux of our nation criminals defense system does not mean that all the problems in criminal defense are readily solved. When we change the conception, we need to find the practical countermeasures and actions. With a view to the transition of criminal defense andeven the whole criminal litigation system in our nation -by-law processruleand the complication of this problem in