| Criminal legal aid as a recourse system for the poor has emerged at the beginning of this century, today, it has become the national system to protect and promote the human rights in majority of the countries. China's legal aid system was established in the 1990s, has developed rapidly, at the same time, the theory of criminal legal aid carried out step by step, easy-to-digest manner, and the criminal legal aid thesis gradually can be seen on the press, some research work and data on legal aid have been published, according to the present thesis, information and expertise the author collected, most of the research is introduction of foreign legal assistance and exchange of experiences, less basic theory for this situation, the author will focus on the basic theory of legal aid in this paper.As a criminal legal aid for economically disadvantaged people in need of help to conduct litigation activities to provide legal aid to defend its rights and interests of the system.At the beginning of this century has emerged, and it has become the most countries in the judicial protection and promotion of human rights on a country system. Set up a harmonious society must be built on the basis of the law, it is necessary to have targeted through the legal mechanisms to achieve social justice, protection of vulnerable groups. Vulnerable groups of society to let society have a sense of security, so that these groups face legal problems, even if they are at a disadvantage economic status can also enjoy full justice. It is foreseeable that, if there is no legal aid, poverty-stricken staff of the vulnerable groups of society, its not only on the legal procedures are not guaranteed benefits, and then the legitimate interests of entities may not be protected. And criminal legal aid system is targeted at such a vulnerable social groups and set up legal mechanisms. The protection the right to access to legal aid of vulnerable groups and the provision of legal assistance, are the important ways to reverse its status. This paper because of space limitations, are therefore primarily of recourse against the person of the criminal legal aid discussion.It should be recognized that poor people have been prosecuted to establish the right to legal aid does not mean that the statutory right can be directly converted into the right reality. If the only form of provision of criminal legal aid, and failure to ensure that legal aid is effective, then the criminal legal aid system is expected to function not only could not be realized, the poor and the weak have been the recourse of the people the right of access to legal aid will also be a dead letter. Therefore, how to protect the quality of criminal legal aid, are the establishment of any one of the weakest people were granted legal aid to pursue the right country can not avoid the problem. Effective protection of the quality of criminal legal aid, implementation of "effective assistance" of the poor and weak people being prosecuted for legal aid the realization of the right of great significance.There are many issues to study on Chinese criminal legal aid system; I select some of the basic theoretical issues and hot issues of focus, to promote development of theoretical research. In this paper, apart from the introduction and conclusion, the body consists of four parts.The first part, basically issue of the criminal legal aid. The criminal legal aid this article described, is a legal system that the country provide free legal help to criminal suspects and defendants (collectively called the prosecuted) they have economic difficulties meeting the criminal case through the legal professionals to protect their legitimate rights and interests. This chapter focused on why the nature of criminal legal aid is duty of the country, rather than the so-called charitable work, country in the criminal legal aid should take the role unshakable. Poor people getting legal assistance is recognized as a right; the right becomes a strong form of institutionalization, poor people access to effective legal services in criminal proceedings. On the basis of analysis, author tells the difference between a criminal legal aid and designate defense. Criminal legal aid is more focused on criminal suspects and defendants not afford to hire a lawyer, and the traditional assignment of defense more focus on the protecting disadvantaged. On the basis, I analyze the difference between a criminal legal aid and designated defense. At the same time, I analyze theoretical basis of criminal legal aid system. I conclude that the right helped by the layer is basic human rights of citizens, this right is equal to everyone, and setting up legal aid system is the only way to achieve legal right equally. Punishing crime rightly and protecting the rights of crime people effectively are the basic elements of criminal justice and internal requirements. So timely access to a lawyer to help the rights of criminal suspects are an important constitutional right, is a criminal justice system settings. The core content of human rights is to make everyone get equal treatment, to achieve equal protection of rights. The establishment of criminal legal aid system will give the poor and the weak legal aid is a realization of the right to equal respect.The second part, the status of the criminal legal aid in China. In this part, the author start from the data, analyze the existence of strengths and weaknesses of criminal legal aid in our country currently. Weaknesses of criminal legal aid in our country are: the applications of legal aid cases are too narrow; the mandatory provision of legal aid is too late; the funding for legal aid is inadequate; the quality of legal aid is not high; criminal legal aid mechanism for the implementation is imperfect. The narrow scope of cases applies to legal aid: the vast majority of criminal legal aid cases in the court-appointed defense is limited to five people, non-court-appointed cases very rare get criminal legal aid, review of the economic difficulties to non-designated defense are austerity. The mandatory provision of legal aid is too late, it does not completely solve the problem because lawyer in our country have the limited rights in the investigation phase; and does not require mandatory obligation to appoint a lawyer to investigation criminal suspects in investigation phase. Funding problem is the contradiction between the criminal legal aid demand and supply. Criminal legal aid providers must have a high sense of responsibility and professional knowledge of the law, but in the real case, only small number of providers has the both. In the world, the most of the criminal legal aid system are constructed monitoring mechanism of criminal legal aid. However, in our country, laws and regulations relating to supervision of the criminal legal aid are only few words.The third part, the reform of criminal legal aid system. The author think we should expand the scope of the prosecuted achieving the legal aid, besides expanding the scope of "economic difficulties", we also need to expand the scope of the designated defense. Life imprisonment is a severe penalty, it also is the scope of the designated defense.; ensure the prosecuted achieving legal aid when investigated by the police or the prosecutor; ensure the criminal legal aid funding sources, namely: explore the establishment of duty lawyer to fill the legal blank; ensure the criminal legal aid funding sources, namely: increasing the financial allocation to legal aid, raise other society funds, ensure the supply of the criminal legal aid fund, at the same time make effective use of the limited aid funds; improve criminal lawyer's quality of legal assistance, namely, in expand the scope of the criminal legal aid staff, clear criminal legal aid lawyer duties; build criminal legal aid mechanisms, clearly defined criminal legal aid implementation, supervising subject and methods , set up legal aid and relief and feedback mechanisms.The fourth part, the model of criminal legal aid system legislature. Legal aid system has played an irreplaceable role in maintaining basic human rights, helping the disadvantaged groups, ensuring judicial impartiality and building of a harmonious society in our country. In 1996, "Criminal Procedure law " "lawyer law" have been enacted, the legal aid system established in the Chinese legal system. In 2003 the State Council promulgated "Legal Aid Ordinance", marking China's legal aid system architecture is basically formed. In June 2008, new "lawyer law" demands the lawyer provide legal aid. In recent years, legal aid duty of the Government have been implemented step by step, government funding for legal aid is increasing year-on-year. In the legislative mode, it should be perfect from both aspects: the right of citizens obtaining legal aid should be written into the Constitution, the Constitution must clearly stipulates: "Citizens in economic difficulties have the right obtaining free legal advice, agents, and other criminal defense legal services. Legal aid is the responsibility of the government." At the same time, author think the legal aid system decreed by criminal Procedure Law, lawyers law and "legal aid regulations," which systematization is not enough, the contents are scattered, and the level of legislation is not high, it should be legislated "the Legal Aid Act" by the National People's Congress . |
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