| Criminal defense refers to litigious activities of the defendants under criminal accusation and their defense counsels to contradict the accusations against them according to law and provide legal and factual evidence and opinions in favor of their own side. It is a legal system originating in the West and prevalent in all countries in the modern time. Its establishment marks a significant development of criminal justice and its spirit. As criminal justice is conditioned on and aimed at the limitation or deprival of certain rights of those under criminal accusation, it is necessary to guard against improper partition of the rights and interests of the accused and protect their lawful rights and interests. Therefore, it is of great significance to establish a sound criminal defense system.This essay tries to trace the origin and the development of the criminal defense system, explains the necessity to improve the criminal defense system in China, analyzes the problems existing in the current criminal defense system and the reasons for their formation, and, based on that, put forward proposals for the improvement of the criminal defense system in China.The embryonic form of the defense system found its expression in ancient Rome. After the capitalist revolution, the modern defense system came into being on the basis of democratic concepts and was formally established by law, emphasizing the right to defense of the accused. After the Second World War, the development of human rights exerted great influence on the defense system. The expectation of people for humanitarian legal system and the establishment of world peace and equitable order resulted in continuous strengthening of the weight of human rights. This led to consensus for protecting individual basic rights and freedoms at the international level. The United Nations has played a leading role in systemizing that consensus by adopting a series of international conventions and resolutions. A considerable part of them involved the criminal defense system. The attention to and protection of individual rights subsequently became one of the fundamental considerations of various countries for improving the defense system.China's defense system started in the late Qing dynasty and was established after the founding of the People's Republic of China. The new criminal procedure law that went into effect in 1997, in particular, brought along major development of the defense system. The law made clear the duties of defense counsels and permitted the accused to access to defense counsel earlier, and introduced into China aspects of the adversary proceedings. Those changes highlighted the protection of the lawful rights and interests of individuals and were in keeping with the trend of the world development. However, in practice, there still exist some problems in China's defense system and there are discrepancies with the widely accepted international standards. There is a need for its constant improvement.The essay sums up outstanding problems in the practice of the criminal defense system in China, including the difficulty in early access to a defense counsel, the difficulty in collecting evidence and in making investigations, the difficulty in accessing files, the unequal status of the prosecution and the defense, and the high risks for making criminal defense. For those problems, this essay explores the reasons that give rise to them. It holds that most complicated various factors may be, they may be analyzed from the following three aspects: Firstly, the influence of the mode of thinking. It includes both the influence of the traditional concepts and the "left" deviation and the value orientation of placing emphasis on substance and taking procedure lightly. Secondly, there still exist some defects in legislation, which have been developed either because the law clauses themselves are unreasonable and run counter to the spirit of legislation or the trend of development, or because there lack legal provisions for... |
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