Reflection On Reform Of Criminal Defense System In China From The Prospective Of A Judge

The evolution of criminal procedures system is also a history of the development of the right to defense. The emergence and gradual improvement of the right to defense coincides with the development of the lawsuit system as well as the division and constant development of various lawsuit functions. The criminal defense system is the fundamental element and core of the criminal procedures, and is the most powerful means to protect the rights and interests of suspects and defendants. The criminal defense system is a yardstick of the criminal lawsuit system of a country, and an indicator of the legality of the country. The Criminal Procedural Law 1996 of the People's Republic of China has improved and developed the criminal defense system. According this law as amended, a suspect has the right to hire a lawyer to provide legal advice, plea or accuse on his behalf after the custody or first interrogation by the investigating departments. The lawyer may approach the investigating departments to understand the charge, visit the suspect in custody and apply for bail. Once the investigation finishes and the case is transferred to the prosecutor, the lawyer may participate in the litigation, understand the case, and collect related information in his capacity as defending counsel. For the trial stage, the range of designated defense has been broadened by law. Besides, as the form of trial is changed, the rights and roles of the lawyer in the court investigation have been enhanced. However, the real performance of the defense system is unsatisfactory. The judicial practice does not show a significant improvement in the assistance obtained criminal suspects from lawyers. Defending counsels are confronting various hindrances in their practice, and the rate of criminal defense is even on the decline, which is obviously contradictory to the intention of the legislators. As the Criminal Procedures Law is going to be amended again, the author, as a judge engaged in criminal trial for nearly ten years, provides some insights into the basic theoretical issues in the criminal defense system, such as the right to defense and the function of defense, and attempts to analyze the unsatisfactory performance of the current criminal defense system in terms of legislative defects and system reasons, and makes some proposals on improving the criminal defense system. It is believed that defending counsels must be given more lawsuit rights, both in the trial procedure and the pretrial procedure so that the balance between prosecution and defense may be achieved. When the counsel may fully exercise his defending right, not only may the rights and interest of the criminal be protected but also the judge may have a better idea about case and make a fair judgment. In this way, people will have faith in the judicial system, and the criminal defense will play a better role.