A Study On The Public Defender System

The public defender system (abbreviated to be the PDS thereinafter) is a special form of legal aid system set up and financially supported by the government, in which full-time or part-time criminal defense attorneys who are state civil servants are organized to provide professional help to the accused who are poor. Under its obligation to protect the human rights of citizens, the government establishes this criminal legal aid system to provide defense free of charge for the accused that are in need. The theoretical bases of the PDS are modern responsible government theory, human rights protection theory and the principle of judicial justice. What differs the PDS from other legal aid system is that it is public, obligatory and professional.The PDS first appeared in the United States in 1914 and it has become a mature system in some countries like the UK and the US. But it hasn’t yet taken a place in the current criminal judicial system of our country. There are some differences in the PDS in different countries and regions, but there are also some common points in general that can serve as experience and lessons in the establishment of the PDS in China. Considering the necessity and feasibility of the establishment of the system in China, it is an imperative deed. Firstly, it is necessary to establish the PDS. It will be conducive to the improvement of the current situation of low criminal defense rate and immature criminal legal aid system. It is also the inevitable requirement of the protection of human rights and the implementation of constitutional rights of citizens. Secondly, it is feasible to establish the PDS in China. The overall national strength provides a strong economic base for the establishment of the system. With the quickening pace of reform and opening up, our comprehensive national strength keeps increasing. In 2010, China surpassed Japan and became the second largest economic entity. What’s more, in the practice of the establishment of the system, we also had our own experience. In the Republic of China, the PDS has been implemented for a short period of time. People Nowadays have also began to explore the system. For example, pilot offices of the PDS are set up in Pudong area of Shanghai, Xia’men of Fujian Province and several other areas and run in good condition.We have possessed the basic requirements of establishing the PDS. On how to set a system in accordance with the condition of our country, we can combine foreign experience and China’s status quo and consider many factors like the bearing mechanism of the PDS, the source of funds, personnel selection, the scope of accepting cases, the intervention time etc. In the beginning, we can take advantage of the existing system of legal aid and set the public defender’s office in legal aid center. The cases in the center will be collected and classified according to their nature. The cases that need the service provided by public defenders will be sent to the public defender’s office in time. As for the source of funds, it is necessary to incorporate public defenders into civil servants, whose salaries are included in the financial budget of Ministry of Justice. On the personnel selection of public defenders, the first requirement is the candidates have passed the national judicial examination and acquired the lawyer’s practice qualification. This basic standard can ensure the professional quality of the public defenders. A certain amount of judicial practice should also be required in the public defenders to guarantee that effective defenses can be provided to the accused. The scope of accepting cases is an important part of the system because it, to some extent, determines the influence of public defenders within relevant scope. When setting the scope of accepting cases, several factors should be taken into account, like the nature of the cases, the defect of the accused and the financial condition of the accused.As a powerful supplement to the criminal legal aid system, the PDS is the requirement of carrying out the national principle of respecting and protecting human rights. It is also the demand of achieving the equilibrium between accusation and defense and judicial justice. It is, furthermore, the practical needs of the accused who are in need. Studies on the PDS should combine the reality of our country and the experience of other countries and regions in the operation mechanism and development process of the system so that a scientific, feasible and localized public defense system will be established in our country.