Study On Chinese Ineffective Assistance Of Counsel System

With the in-depth reform of criminal justice and the execution of “Criminal Procedure Law" in 2012, the development of the defense system appears to have new trends, and the increase of adversarial factors helps to strengthen the defendants’ demand of effective defense from the defense lawyers. Ineffective assistance of counsel system plays an important function to relieve defendants and effectively minimize the conflict between the right of self-defense and the right to entrust the right of defense which has great significance to maintain the balance of prosecution and defense, and also ensure justice. Our criminal justice reform should learn from such system.This article aims to analyze the history and theoretical support of Ineffective assistance of counsel, explore and clarify the nature, function and identification standard of the ineffective assistance of counsel, and also analyze the ineffective assistance of counsel in the type of national infringement and that in the type of sabotage of lawyers as one unit based on China’s reality. Learn from foreign experience, this article comes up with “Four Elements” as judgment standard of ineffective assistance of counsel in line with China’s national conditions. In the analysis of the necessity and feasibility of building up the Ineffective assistance of counsel system in China, this article discusses the launch, testification, consequences and related rules of ineffective assistance of counsel system.This article believes that the right of defense is the foundation of all the rights of a criminal defendant, who shall obtain effective defense as the right of defense, the buildup of ineffective assistance of counsel system helps the defendant to obtain proper and substantial defense with minimum standards. Ineffective assistance of counsel system is a procedural sanction method, under the general background of "promotion of the reform of trial-centered procedural regime" in China, we must make its function as to balance prosecution and defense, strengthen the substantial right of defense in the trial. We must also emphasize the balance of the right of defense and the right of complaint outside of the trial procedure by emphasizing that not only the behavior of defense lawyer is in compliance, but also the government agencies exercise the power within the limit of authorization. Based on China’s national conditions, we should use a judgment standard of an ineffective assistance of counsel system which combines "by-case investigation" and "review list investigation", and specify the main body, starting time, the burden of proof and legal consequences of the system.