An Elementary Research On The System Of Ineffective Assistance Of Counsel

The right to defense protected by Criminal Procedure Law is not only refer to entrusting the accused the right of self defense and hiring lawyers as defender, but also require the defending lawyers actively attend the criminal procedure and provide high-quality as well as effective legal aid to the accused in the authorizing defense situation. Our government has made a lot of efforts to protect the realization of the accused’s defense right, such as, advancing the time when lawyers entering the criminal procedure, enlarging the lawyers’defense right to protect the accused’s interests, and providing legal aid to the accused who is poor or meets the legal defined situation. But the realization of the defense right of the accused is not so good in reality, there are two main reasons. The first is organs of state power’s obstruction and infringement of the lawyers’ defense right’s exercise. The second is the lack of judge criteria for the effective exercise of the lawyer’s right to defense, which leads to no effective containment on the situation that lawyers defend for the accused negatively. In theory and practice, Criminal Procedure Law lays particular stress on the objective environment’s protection on the lawyer’s defense and ignores the effectiveness of the realization of lawyer’s right to defense. The lack of judge criterion for the effective exercise of defense right results in the fact that defense right is difficult to exercise. It has been a big problem that how to master the judge criteria of effective defense so that lawyers can restrain the defense behaviors from themselves. So it’s difficult to master and unify the effectiveness of defense in practice. To solve this problem, it’s necessary to research on the system of ineffective assistance of counsel in western countries. Define the effective assistance of counsel from the reverse side is feasible in practice. The left of excluding ineffective assistance of counsel is effective assistance of counsel.The western countries has made broad and deep discussion on the quality of criminal defense, defending lawyer’s behavior and negligence, as well as the judge of lawyer’s effective defense. Therefore, the system of ineffective assistance of counsel was established to define effective assistance of counsel and provide judge criteria for it, which solves the problem that how the accused seek help to make up the loss because of the lawyer’s negative defense. The system of ineffective assistance of counsel emphasizes studying the defense effective or not from the perspective of lawyers’self-discipline, turns the focus from the objective judicial environment’s protection on the right to defense to the effectiveness of the realization of lawyer’s defense right, provides a reference criteria for lawyers’defending behaviors and puts the idea of protecting the accused’s defense right into force effectively.In China, few people discuss lawyers’negative defense behaviors’ influence on the accused actually and legally. There are neither judge criteria nor punitive measure in legal procedure to lawyers’negative defense behavior. Lawyers just need to bear administrative liability, civil liability and punishment in legal morality, which cannot make up the personal and property loss of the accused. Along with the continuous reform of litigation system, the defense lawyer plays a more and more important role in the criminal proceedings in the future and the lawyer’s defense strategies and skills affects the criminal judgment largely. Establishing the system of ineffective assistance of counsel against lawyer’s negative defense behavior, has great significance in reality. The first is prompting lawyers actively and effectively participate in criminal proceedings, in order to prevent and avoid lawyers’ fault and negligence in defense process, reduce misjudgment and improve defense quality. The second is providing legal aid to make up the accused’s loss results from lawyers’ negative defense behavior. The third is that it’s conducive to strengthening the accused’s subjective status. Comparing with Criminal Procedure Law, Lawyers Law, Punishing Measures on Lawyer and Law Firm’s Illegal Act, the system of ineffective assistance of counsel can protect the accused acquire effective defense from the legal level and make the defense system more complete.To establish the system of ineffective assistance of counsel in accordance with our country’s judicial principle, we should study the main content of the system of ineffective assistance of counsel of western countries, such four aspects as application reasons, judge criteria, burden of proof and legal consequences. Given our country’s current status that the defense power of lawyers is still weak and inefficiency of criminal defense, the system of ineffective assistance of counsel is only applicable to death penalty cases and some appointed cases. Strictly distinguish lawyers’ negligence like inadvertent and strategic mistakes, then treat differently, only lawyers’ inadvertent mistakes can be the application reason of ineffective assistance of counsel. At the same time, combining lawyers’negligence with its influence to the fairness of cases, strictly mastering the judge criteria for ineffective assistance of counsel and set up dual burden of proof. Combine the accused’s interest in lawsuit with lawyers’ professional reputation, property and the legal results of defending behavior, provide relief approaches in and outside the legal procedure, expect lawyers can discipline their defense behaviors from themselves, so that the right to defense of accused can transfer form to reality.