Research On The Rights Of Counsel Assistant Of Criminal Defendant

With the acceleration of the building of the rule of the law, in particular, the progress of the ideology of human right in the international communities , some of the contents of the laws are not able to meet the challenge of the time. Its defects in the structure and vague meanings in the provisions are gradually becoming prominent. There are fewer defence lawyers representing in criminal cases, the fairness of justice is hard to be guaranteed. In December 2003, the Standing Committee of the National People's Congress of China decided to revise criminal procedure law.As one of the basic laws of China, criminal procedure law is closely related to grave matters such as judicial system and the rights of the citizens of China and its contents directly reflect and affect the outlook and process of the rule of China. After China has ratified and join a number of international conventions such as International Convention on Civil and Political Rights. Some of conventions clearly require that defence lawyers shall effectively participate in the criminal proceedings and provide legal assistant to the suspect and defendant. It is obvious that the effective participation of defence lawyers in the criminal proceedings is not only to perform the duty required by the domestic laws but also to undertake the obligations prescribed by international laws.Human rights in criminal procedure are procedural and that it bears independent value in criminal procedure. Human rights directly protected by criminal procedure are the procedural rights of the participants in the action. The thought of human rights protection is not only basic requirement of constitutionalism and constitution, but also embody of legislation of criminal procedure law. To strengthen the constitutional concept within the domain of criminal procedure is the conceptual basis for basic human rights protection in criminal procedure.The rights of counsel assistant of criminal defendant come from the defence rights of criminal defendant by himself. The procedural rights of defence attorney are the extended part of the defence rights of defendant, and that the final purpose of granting defence attorney procedural rights is for the better protection of the legal rights of defendant and for realization of the defence rights that the constitution grants defendant.The thoughts of presumption of innocence, the balance between the accused and the prosecution, procedure aspect, human rights protections had been accepted by modern nations that are ruled of law commonly, and had promoted to basic principles of criminal procedure law, the relative rights had been promoted to constitutional rights. It is one of the extremely important aspects to strengthen the rights of counsel assistant of criminal defendant on the revision of criminal procedural law, borrowing the legal experiences from other countries, the rights of counsel assistant of criminal defendant should be promoted to constitutional rights of the people.The legislation stipulations of our country has great disparity compared with international criterion. And, The current judicial situation of counsel assistant of criminal defendant is less than satisfactory, because a lot of questions exist. According to international criminal justice code, improving advocacy system, is the focus of reform on the criminal justice of our country. The author thinks, we should reference some foreign country's regulation and successful experience in the judicial practice about the system on the right of counsel assistant, and consult the content stipulated in the international convention. We should take measures as soon as possible, to improve the right of counsel assistant of criminal defendant.