The Study Of Appointed Defense

Appointed defense is one of the key segments of the system of advocacy in criminal proceedings, which also belongs to legal aid. It is the vital part of judicial human rights protection system of a nation. This thesis focuses on the basic issues of appointed defense, then to discuss the related points in four chapters.The author did research on some basic issues of appointed defense in the first chapter, which can be divided into two parts. In the first part, the author analyzes the connotations and features of appointed defense. Appointed defense, as a kind of criminal defense, mainly refers to the system that the government which carries out the power of investigation, prosecution and judgment appoint an advocate for the suspect and defendant who is fit for the condition. Generally, there are three features of the appointed defense: firstly, it is the act of state; secondly, the suitable stage of appointed defense includes investigation, prosecution and judgment; thirdly, it is the particular reason which can cause appointed defense. In part two, it is about the value of the appointed defense, which can be summarized into four points: first, appointed defense is the inevitable demand to implement the doctrine of the presumption of innocence in the criminal proceedings. Second, appointed defense is the effective way for the suspects and defendants to gain the equal treatment. Third, appointed defense is of great option value for the protection of human rights. Fourth, appointed defense is a vital system to make the judicial fairness come true.Chapter two is mainly about the investigation and discussion of appointed defense on an international scale. There are four parts, part one is about the applicable targets of appointed defense, which can be classified into following types on a international scale: the first is the poor defendants who can not pay for a lawyer; the second is the defendant who may have a serious sentence; the third is the defendant who is under 18 years old; the fourth is the specific defendant, usually refers to those who are disabled. Part two is about the different types of appointed defense. We can have different classification of appointed defense according to different criteria. We can divided into forcible appointed defense and discretionary appointed defense according to the criteria of judicial authority; according to different starters, we can divided into appointed defense on authority and appointed defense on application. In China the start of appointed defense mainly depends on authority, the defendant do not have room to do it. Part three is about the applicable stage of appointed defense. The applicable stage refers to the three stages, investigation, prosecution and judgment, and in which can you get the appointed defense. Now a day, all the countries which carries out appointed defense makes it available in the judgment stage, but when it comes to the stage of investigation and prosecution, there are some differences among nations. United Nations documents pointed out that we should make the appointed defense available during the stage of investigation. There are also such regulations in the investigation stage in America, England, France, Germany and other developed country, but in China we only apply the appointed defense to the stage of judgment. Part four is about the protection mechanism of appointed defense, which is the generic term of the procedural sanctions and measures. It mainly against the illegal actions of encroaching on the power of appointed defense. Most developed countries have the regulations of remedy measures about the guarantee of appointed defense, such as: Exclusionary rule of illegally obtained evidence and the system of quashing an indictment and disaffirmation in America; the third trial appealing system and evidence banning system in Germany; Exclusionary rule of illegally obtained evidence and the procedure of appeal and retrial in Russia; in Taiwan China there are the third trial appealing system and the system of extraordinary appeal; in China we also have withdraw rule and rehearing system.In chapter three the author takes the discussion of main problems of appointed defense into consideration in our country. Our current appointed defense have some deficiency and shortcomings whatever in the legislation level or judicial level. We still have a gap to go to catch up with international criteria and the common methods of most countries. List several here: firstly, the scope of mandatory defense is too narrow; we formulate six"ought"appointed defense in Chinese law and seven"can"situations, the former scholars as mandatory defense. In the practice of judicature, the cases which can indeed get the appointed defense are the cases in the scope of"ought", the case which"can"get appointed defense, in fact, seldom get the appointed from the court. Secondly, the monotype appointed defense. Our national appointed defense only happen according to the appointment of the court, whether or not the defendant can get the appointed defense totally depend on the court, the defendants do not have enough room to choose themselves, which embody the serious phenomenon of authority. Thirdly, the appointed defense to get involved in the lawsuit is too late. In China we only formulate appointed defense in the procedure of judgment, but no such defense in the stage of investigation and prosecution. Fourth, the Protection Mechanism of appointed defense is lost. Though we formulate the appointed defense, no remedy measures to take when the court violates the obligation of appointed defense. Fifth, the quality of appointed defense is too poor. In the author's opinion, the existence poor responsibility of the counsel for the defense during the judicial practice, imperfect procedure and lack of supervision lead to the current situation in China---poor quality of appointed defense, no due emphasis on appointed defense.In chapter four the author proposes some ideas of reforming and perfecting the appointed defense system. Firstly, A moderately expand the scope of mandatory defense shall be specified. I think that our country would consider the following several cases into the appointed defense scope: first, may be sentenced to five years life imprisonment shall be sentenced to fixed-term imprisonment of the accused man; Second, is accused of above 60 one full year of life; Third, is accused of ethnic minorities. Secondly, to increase in applying the appointed defense type. I think that can be used for reference in Anglo-American and the continental law system in the criminal procedure, the general practice in applying the appointed defense add a type, giving the defendant active start the appointed defense program and safeguard the rights to obtain the appointed defense right of the defendant independently exercise. Thirdly, the appointed defense will advance to the investigation phase. Investigation phase gives accused person appointed defense has become the international protection of human rights, and the development trend of history that China will advance to the appointed defense for stage. Considering our investigation phase of the status, investigation phase can be limited in scope of mandatory appointed defense. Fourthly, perfect the appointed defense security system. Concretely speaking, our country should establish and perfect procedural sanctions below, in order to ensuring the essence of the specified: first, to establish rights enjoyed that system and improve eliminating illegal evidence rules; Second, to perfect the current revoked, retrial system. Finally, establish the appointed defense case handling quality supervision and evaluation system. First, we should strengthen the lawyers'professional ethics and practice of literacy education; second, it is to build the appointed defense system of supervision cases which handled by a lawyer. Third, to establish lawyer appointed defense case evaluation system.