Research On The Basic Principles Of Procedural Defense

Although our criminal procedural law has determined the legal principle, granting to the procedural defense, but the judicial problems of “The spirit is willing, the flesh is weak” are also very highlighted,the difficulty can be found in procedural defense. Firstly, enslaved to objective causes, procedural defense is forbidden. In practice, because of the fuzziness and inadequate of procedural defense, the procedural claims have no basis in law; In the trial, the defense challenges the judiciary violations, including the conduct of the trial with reviewing difficultly and long period of litigation, some judges are quite sensitive to the negative effect of the defense, leading to professional lawyers are forbidden to raise a defense in proceeding. Secondly, Because of the purpose, professional lawyers are afraid to defense. The purpose, including substance and procedure, is to obtain a favorable ruling. In the inner conviction system, the judge still has a large discretion on the final decision. However, in order to pursue the vocational favorable final result of the tendency, considering some judges’ negative attitude of defense, some lawyers are afraid to claim procedural defense. Thirdly, lacking of research, strange to procedural defense. In practice, some judges insist on procedural fairness and legitimacy, and support to defend on procedural claims. Then, subjected to their theoretical ability, professional lawyers often has little awareness and single skills in procedural defense. Losing the core and focus, leading to the result of taking the words too literally. Finally, the claims are excluded by the judge. The problems on the above reflect the obstruction and procedural bottlenecks in judicial practice.Talking about the basic principles of procedural defense, we must be clear the basis of theory and its significance, which is based on the existence of violations in criminal procedure, needing to be regulated by the basic principles of procedural defense. Procedural violations is judiciary and its staff break the procedural law in criminal proceedings. In this proceeding, judiciary’s violations are very common with a extensive stage. These violations seriously impinge the right of litigants and also are contrary to the norm of procedural rules. To a certain extent, even we could believe its disadvantage is not less than the crime, and we should pay attention to these illegal-procedural acts. So the author try to research the basic principles of procedural defense.Through the research and the enactment of basic principles of procedural defense, can enhance the knowledge about the procedural defense of judiciary and defense counsel, changing the past illegal and arbitrary phenomenon in criminal proceeding. In order to change this situation, it needs the efforts of lawyers, but to strengthen the basic principles of procedural defense and improve the relevant legislation and judicial protection is still very important.Procedural-illegal behavior is the foundation of basic principles of procedural defense, the basic principles of procedural defense is the specific application of the theory of procedural law in criminal defense. Therefore, only by grasping the procedural illegal acts, could we set the basic principle of procedural defense with a theoretical basis. Since the academic attention and research, Professor Chen Ruihua has firstly paid attention to the procedural-illegal acts and procedural defense. However, there is still much controversy about the ways of to apply in practice, to combine the theory with practice, to use the theory guiding practice. It’s not only the problems which should be cared by lawyers, but also judges and prosecutors. So the basic principles of procedural defense should be a consensus among judges, prosecutors and lawyers. Like the basic principles of criminal procedure, it works among all the participant in criminal proceeding. The basic principles of procedural defense, in a sense, is the basic principle of procedure law, also is the basic principles of evidence, of course including its own principles. It is a special kind of standard. In this way, if we can form a standardized and unified cognition, so the prosecution and trial could form a consensus, the procedural defense can also be accepted by the participant in criminal proceedings. So, the object of the basic principles of procedural defense, is not just for the lawyers, but should has normative and binding values to the community of legal profession.Based on the above, the setting standards of the basic principles of procedural defense and conditions were studied, and the content of the basic principles of procedural defense is discussed in this paper. In order to better implement the basic principles of procedural defense, the author also put forward some relevant measures to resolve the problem in practice. By these steps, the author hopes to realize the effective utility of the basic principles of procedural defense in the judicial practice.