Research On The Problem Of How To Guarantee The Prosecuted's Right To Defense In Our Country In The Perspective Of Human Rights

In criminal proceedings, the prosecuting body exercises on behalf of the country great power such as investigation, interrogation, prosecution and other different coercive measures, which, if applied improperly, are liable to infringe the prosecuted's human rights. Therefore, it is necessary the prosecuted be entrusted with the right to defense to enable them to effectively confront the country's prosecuting body to achieve a comparative balance between fighting crime and guaranteeing the prosecuted's human rights.However, there still exist a lot of phenomena in which the prosecuted's human rights are infringed in the criminal proceedings of our country, such as difficult access to the criminal suspects, to the relevant files and to the investigation and evidence collection, which severely infringe the prosecuted's human rights. What's more, it was listed on the agenda of the 30th session of Standing Committee of the National Congress convened in October 2007 to amend the Criminal Procedure Law, which indicated the work of re-amending the Criminal Procedure Law had stepped into a substantial stage. Therefore, it is of great theoretical and practical significance to have rational thinking on the problem of how to guarantee the prosecuted's right to defense in our country.The thesis is divided into six chapters, in the perspective of human rights and the prosecuted rather than of how to guarantee the prosecuted's human rights by guaranteeing the lawyer's right to defense, to research on the problem of how to guarantee the prosecuted's right to defense in our country.The first chapter and preface gives some idea of the background and significance of selecting the topic of this thesis, collects and arranges documents about the prosecuted's right to defense home and abroad, gives a clear definition of the prosecuted's right to defense and emphasizes that it has become the common sense of the international community to entrust the prosecuted with the right to defense in criminal proceedings so as to guarantee their human rights.The second chapter dwells on the reasons for the practice of entrusting the prosecuted with the right to defense and it's pointed out that guaranteeing the prosecuted's right to defense helps to consolidate its chief position, to realize other programmed human rights and to guarantee substantial human rights.The third chapter concentrates on the main problems existing in the course of guaranteeing the prosecuted's right to defense in our country. It is believed by the writer that there still exist some problems in the course of guaranteeing the prosecuted's right to defense. Firstly, there are not adequate measures to guarantee the prerequisites to exercising the right to defense and there exist the deficiency of the right to inform and a lack of the right to bail. Secondly, there's a lack of ways the right to defense can be exercised and there's no right of silence for the prosecuted in the laws of our country. Thirdly, there are not adequate measures to guarantee the effectiveness in exercising the right to defense and the lawyer's right to help is restricted. Fourthly, there are not adequate measures to guarantee the countries in which the right to defense is exercised and there's a small scope and not sufficient expenditure for the legal aid.The fourth chapter analyzes in three aspects the reasons for the deficiency in guaranteeing the prosecuted's right to defense in our country, which include the influence of our country's traditional views, the adequate existing legislation and the severe phenomena of not abiding by the laws.The fifth chapter probes into the comparative laws for guaranteeing the prosecuted's right to defense. By probing into the comparative laws in the Anglo-American Law System, in the Civil Law System and in the international standards of guaranteeing the prosecuted's right to defense, our country can draw some experience in how to better guarantee the prosecuted's right to defense.The sixth chapter discourses the counter-measures about how to better guarantee the prosecuted's right to defense in our country. To effectively guarantee the prosecuted's right to defense, our country, first of all, should build up a view of paying equal attention to both fighting crime and guaranteeing human rights and attaching equal importance to both the authenticity of the cases and the guarantee of the procedures. Secondly, the prosecuted's right of lawsuit should be reinforced and the lawyer's right to help should be consummated in the existing legislation. Thirdly, the supervision and restriction of the infringement the public power has on the prosecuted's right to defense should be reinforced and courts of just judicial review should be established to authorize and legally investigate coercive measures such as arresting and detaining which leads to the restriction and deprivation of the personal freedom. In this way, the prosecuted can exercise their right to defense more effectively with the prerequisite of ensured personal freedom. Finally, a relief mechanism should be established to truly implement the guarantee of the prosecuted's right to defense by programmed sanction.