The Procedural Protection Of Criminal Defense

The procedural protection of defense is legal principles of defense and the rules of step, time limit and process, which protect the realization of the right of defense rather than limit it. Therefore, procedural protection of defense realizes its value by two way. By scientific designing, first is setting a barrier against improper infraction from public prosecution and second is providing immobile method for exerting right of defense successfully which change the right of defense from static state to practical dynamics state.With the signification of defense been analyzed, we find the relationships between two parties in criminal process. That is, as long as the defender fulfilled his obligation of defense when accusant prosecuted, he would enjoy more right of defense. As we known what is the obligation of defense, we have also qualified the extension of right of defense, in which is the content of the system of defense. The right is based the system of public prosecution and as much as the right of prosecution. Considering substantial justice to avoid the wrong treatment to the accused, the rights of defense include the right of meeting singlely, of collecting evidence, of oppugning and disproving and appeal. Considering procedural justice to avoid the wrong treatment, the rights include the right of knowing, of recovery to inquest, of mainprise and procedural motion.According to the theory of accusant and accused confront each other equally, to protect the right of defense, in one hand, to increase repellence of defender; in the other hand, to limit the right of trial and especially the right of prosecution, that is make the prosecution more difficult. Therefore, with reviews of other country's correlated rules and practice, the procedural protection of defense should follow these basic principles. That is efficient apprize, necessary preparation, procedural judgment and punishment.The statement of Chinese procedural protection of defense has several problems. Such as: (l)the judicial apprizing obligation is undefined;(2)the accuser's right of recovery to inquest is weak;(3) the system of being bailed out and awaiting trial is faulty;(4) not only could the counsel's rights of meeting singlely, of collecting evidence, of inspecting and procedural motion not be ensured, but the legal rights also be impinged;(5) the attitude of judge to two parties is unfair; (6)the issues of evidential query is difficult; (7) the right of appeal for defender is lack of enough protection;(8) the right of spying and the right of detaining is indiscrete which make the accused been controlled by his opposer--the public accusant.Because of these shortages in the system of procedural protection of defense, we should improve it from following aspects: (1) to defmitize judicial apprizing obligation;(2)to establish the rules about right of dumbness;(3) to endow the counsels rights of inquest alongside, of meeting singlely, of procedural motion;(4)to form rules of mainprise;(5)to perfect counsel's rights of collecting evidence and inspecting and establish evidence-unfurling rules;(6)to endow two parties the equal right to speak and perfect the testifying rule of witness to establish the across-inquiry system;(7)to protect defender's right of appeal when limit the relative right of public accusant;(8)to construct neutral rules of guarder.