An Empirical Study On The Protection Of Defendant 's Litigation Right

As an important system in criminal litigation, the criminal defense system is closely related to the construction of the rule of law and the accused vital interests. While China’s laws to strengthen the position of defenders in criminal proceedings and the role of a defender also made it clear right at all stages of the proceedings, but for a long time to defenders the protection of the litigation rights are not fully, especially in the lack of defense litigation rights relief program. After the revision of the criminal procedure law in 2012, Article forty-seventh new adds appeal and accusation procedures to protect the defender’s litigation rights when a defender who believes that a public security authority, a people’ procuratorate, a people’s court or any staff member thereof has impeded his or her exercise of procedural rights. That established the defender’s litigation relief system which dominated by the prosecution. This paper is focused on the practice in such appeal or accusation cases to collect the relevant data and cases, and analyses the features, problems and reasons of these cases, and put forward some suggestions of perfect from the angle of specific remedies, in order to help security system for promoting defenders’ litigation of our country.This dissertation is divided into three parts, about 25,000 words.The first part discusses the meaning of defendant litigation rights as well as criminal lawsuit defender right guarantee significance. The article thinks: defender’s litigation rights are the rights of defender’s behavior freedom in the criminal process. The defender is a spokesperson of accused, on the other hand, representing the social to supervises the state power. Security defender litigation rights is an inevitable requirement of justice, is the realistic basis for the balance, but also the basic requirements for the protection of human rights.The second part makes the empirical study about that the defenders seek protection of lawsuit rights through the appeal or accusation. And discusses the status, existing problems and reasons of the appeal and accusation what put forward by defender, from the perspective of judicial practice. The article thinks: at present, the status quo in the judicial practice of the appeal or accusation: 1. the total number of these cases which corrected by the procuratorial organs is not much; 2. the appeal or accusation which about blocking defenders visit the accused is particularly prominent;3. the appeal or accusation against phase of the investigation more than other phases;4. defence lawyers to appeal and accusation more than other defenders. The problems and reasons existing in the practice is mainly reflected in:(1) for various reasons, the defenders’ will to safeguard legal rights through appeal or accusation is not strong;(2) the protection of the procuratorate to the litigation rights of defenders are weak, for supporting system lag, mechanical law enforcement, buck-passing each other when accepts the case, reply channel is not smooth;(3)coordination and control power is not strong lead to guarantee difficulty.The third part of this article, made a perfect sound recommendations. Which mainly from three aspects litigation rights protection mechanism for complaints and appeals counsel.According to the article:(1) as a supervisory body should be objective and neutral prosecutors, defense counsel and the accused’s appeal and judicial appeal sued to keep equidistant relationship to ensure that the results of impartiality.(2) associated with power constraints and should be strengthened. Internally, the prosecution and litigation of internal oversight functions litigation functions should be properly separated to form the internal mechanism of supervision; on the other hand prosecutors should be good supervision, is the supervisory authority should consciously accept the supervision and provide convenience to the prosecution’s investigation of results have objections to the prosecution to allow for reconsideration or review, no objections or objections should not be established promptly correct exercise their litigation rights defender impede law behavior.(3) combined actual work, of appeal and accusation,it should be from the acceptance, diversion, investigation, disposal, reply, feedback six links, reform and improve the prosecutors handling the case when such complaints accuse specific workflow. On acceptance, the right to counsel to facilitate the exercise of complaints and appeals, unimpeded entrance; emphasizes methods in the review process, to ensure procedural fairness and substantive justice; on treatment, emphasized by obstruction of the plot to take a different disposition of different ways that strengthen reply rational, set up feedback mechanisms, and promptly correct unlawful conduct hindered, and effectively protect the rights litigation counsel.