Research On Right Of Defense

As constitutional right, right of defense has been confirmed in the constitutions of many countries and the international conventions of human rights. The meaning of defense right established in the constitution is that, as an important standard of fair trial, right of defense is the reflection and guarantees of civil defense in the criminal justice system. In this sense, right of defense is inherently associated with basic human rights. On this basis, the system of right to defense by attorney derived from the defense right becomes an important defense line to restrict the power of punishment and to protect basic human rights of citizens. Article 124 of the Constitution ordains:"The accused have the right to defense", that established the right of defense on the status of constitutional rights. However, due to the imperfect system and weak cultural foundation, the right to defend of constitutional right status is not recognized enough, and the constitutional normative role and the protection values of human rights are ignored. Therefore, the right of defense is commonly limited, and the defense by attorney is often treated as "annoying obstacle" by the state power sector in the process of punishment to crime. Sometimes, to order to improve the efficiency of the crime punishment, the state power sector restricts or denies defendant right to defense even by adopting various means to suppress the defense counsel.Based on the current situation, the paper considers and studies the problem of the defense right from the nature of human rights and constitutional right. The paper is divided into five chapters altogether. The first chapter discusses the historical process of the defense right as an essential element of human rights. The right of defense, as the right against accusation, derived from the original criminal proceedings. The process from free debate in the criminal procedure in ancient Greece to counsel system in ancient Roman marks the preliminary formation of early defense right system. The right of defense began to reflect the values of protecting human rights, safeguarding arbitrary power and the fair trial initially. However, the right of defense was distorted and weakened in the Inquisition in the middle Ages and the secular trial affected by Inquisition. The defendant lost the independent personality and human dignity, and was deprived of open debate and equal confrontation opportunities, so as to lose the protection of life and liberty entirely. With the social development, the right of defense obtained a new kind of understanding and protection. As the extension and protection of fundamental human rights in the criminal justice field, the right of defense becomes the fundamental right of every person that can not be deprived and deducted, recognized generally by the constitutions of many countries and conventions of international human rights. With the further development of human rights, new contents added to the defense of the right, and the right of effective defense began to be taken seriously gradually.The second chapter analyses the logic development of the defense right from the essential elements of human rights to the constitutional right. From the point of view of human rights, the right of defense is a kind of moral right and proper defense right, which is supported by the social and moral principles and demonstrates the respect for human dignity. As constitutional right, the defense right possesses the characteristics of basic right that is indispensable, irreplaceable, non-transferable, stable and universal, and fundamental. The defense natures of its constitutional right include the establishment of the legal subject status to the prosecution, the plea to defend the state power, and the legitimacy of the criminal process. Therefore, the defense right reflects embodied the person’s moral subject in the criminal prosecution that is founded on the basic human rights, and it becomes a necessary standard to fair trial right. From the point of defense right values, the value of procedural justice includes building the order of criminal activities with equal position between the prosecution and defense, protecting effective participation in the proceedings, and contributing to rational justice. The value of substantial justice is reflected in the protection of innocent persons from criminal investigation, and the ensuring the correct understanding and implementation of law. The value of power constraints reflects the constraints to the power of the investigation, the prosecution and the judicial power.The third chapter elaborates the right of defense from the goal to positive, with the re-thinking of the defense rights system. In criminal procedure law, the defense right contains the rights of information, participation, expression, supervision and the access to lawyers. The five sub-rights may be further expanded in procedural law and other relevant laws to form a relatively complete defense right system. In the further analysis of this chapter, the specific operation of the defense right is discussed by analyzing the crime control model and due process model. In the crime control model, the procedural law focuses on the court confrontation between the prosecution and defense, and ignores the protection of the right to defense in the investigation stage. In the due process model, the power of arrest, detention, prosecution, trial and conviction is imposed with severe restrictions. Therefore, the right of defense should be divided into various specific procedural rights, which provide constraints on each corresponding stage of criminal procedure. The further development of positive stage of the defense right is to protect the real effectiveness of the exercise of the right. The protection of effective defense was established by the U.S. criminal cases, which is an important reference for China. In my points, the establishment of effective defense system can facilitate the investigators, prosecutors and judges to protect defendant’s right to defense actively in the proceedings.The fourth chapter discusses the extension of the right of defense that is the right to advocacy including its nature and contents. The emphasis is to identify the nature of the right to advocacy, and from this point, the paper elaborates the contents contained in the right to advocacy. The right to advocacy is the fundamental security and realization of accused defense right. Right to advocacy arises from the authorization of the accused on the one hand, and the defense counsel exercises the right to defend his clients. On the other hand, right to advocacy is endowed by the state law, and the defense counsel exercises the right and assumes legal obligations. Therefore, the right to advocacy can be divided into the right of agency and the inherent right of defense. Right of agency is decided by the content of the defense right, and the rights of information, participation, expression, supervision should be protected by the law. The inherent rights of defense counsel include the right to meet with the accused, the right to be present, investigation of evidence, the right of debate and so on. Therefore, the defendant’s defense right is further protected by the specification and guarantee of the right to advocacy.The fifth Chapter discusses in detail the problems and improvements in China. The emphasis is reflection on the constitutional right of defense and comprehensive thinking about improvements. From China’s historical progress of the introduction and development of defense system, there still exist many problems from the modern Chinese legal migration to the present. The main problems are that the right of defense lacks of constitutional status of fundamental rights, the nature of constitutional rights is ignored in branch of law, the departmental legislation lacks of overall support for the right of defense, and the right to advocacy can not be protected properly. The reasons are various, which can be generalized into the following aspects. Firstly, insufficient understanding of the status of constitutional rights is one of the reasons. Secondly, the cultural background of defense practice is weak, which includes the lack of common belief in fair trial and the lack of the concept of independent and equal personality. Lastly, there exist reasons concerned to social reality. Therefore, the right of defense protected by the Constitution should be improved, the right of defense should have clear status of basic rights, the basic principles of constitutional criminal procedure should be enriched, the normal function of defense right as basic rights should be strengthened, and at last, the right to advocacy should be realized substantively.Rest conclusions part concerns the additional discussion on the cultural foundation and the defense system. The paper proposes to transform the culture, strengthen the system. In culture and in the litigation, the effective defense should be treated as essential contents of fair trial. That the defense is not adequate or invalid can directly affect the effectiveness of criminal jurisdiction, which should be stipulated as the statutory grounds for remanding for a new trial, retrial, complainant and the revocation of original judgments.