Research On The Independent Right To Defense Of The Criminal Accused

Since the criminal procedure law revised in 2012,the lawyers’ status of "counsel" in the investigation stage has been established initially.As for the right of interview,in addition to the crimes of endangering national security,terrorist and particularly serious crime of bribery, if the defense counsel requests a interview with the accused person, there is no obstacle generally.At the same time, the law also explicitly requests, when lawyers interview accused person,monitor is forbade.the Law of Criminal Procedure further expanded the scope of the right to review files and provided that from the date of procuratorate examinating and prosecuting the case, the defense layer can consult, extract and duplicate the material of all the books to the case,the judiciary could not stop for any reason.At the same time,the defense layers’ right of application for investigation also retained.This is because the lawyer in China has become an independent social force today.They begin to get more and more right to speak and involved in the legislative changes and judicial reform processes.However,as the subjects of criminal procedure,the criminal accused has not got enough importance.In the current system, the criminal accused without any autonomy right to defense has always been at a passive position throughout the investigation stage.Specifically, whether to interview and counsel must be decided by layer; the case file could be reviewed only by defense layer, the scope of evidence verified is decided by counsel; and the right to apply for investigation also rests in the hands of a defender.Visible, the defense system in our country presents a pattern that "the party own the right to defense," “the defense layer exercise the right”.According to a survey, there are no defenders in nearly 70% of China’s criminal cases and the defendants have to defense by themselves. With a lack of the right, the defendants are unable to collect the evidence in favor of them and learn the prosecution’s evidence. Under such circumstance, to confront the powerful detective agencies in court is like throwing an egg against a rock. Moreover, it is a fact that not all defense lawyers are equipped with highly professional skills and ethics. If a defendant is unfortunate to have employed a perfunctory defense lawyer, it is impossible for him to effectively exercise his defense right. The goal of establishing the defendant’s self-defense right is to encourage the defendant to actively participate in the criminal judicial proceedings and effectively exercise his defense right, and then to safeguard his legal rights and interests. The establishing of litigant self-defense right epitomizes the defendant’s principal status. The evidence statement system of Anglo-American Legal System and the defendant’s file-consulting right system of Continental Legal System are both ways of protecting the effective exercising of the litigant’s self-defense right. When the principle of respecting and safeguarding human rights was added into China’s criminal procedure law, it is necessary for China to prioritize the establishing of the defendant’s self-defense right, set up substantially the defendant’s principal status, and effectively protect their litigious right, realizing at last the fairness of proceedings and entity.This article employs the methods of comparative analysis, law explanation, data analysis and deductive reasoning to set up the discussion. It considers that the defendant can share the meeting right, file-consulting right, the right of requesting investigating and evidence collecting, and other litigious rights with the defense lawyer from different perspectives and thus the defendant’s independence of safeguarding his own rights and interests can be established. It is a basic requirement of implementing the principle of respecting and safeguarding human rights for China to grant suspects the independent’s self-defense right. It is a practical need for those defendants who are in a weak position. To ensure that defendants actively participate in criminal judicial proceedings, the writer recommends that defendants shall be granted the independent self-defense right. Specifically, defendants shall be granted the rights of meeting the defense lawyer, independent file-consulting, requesting investigating and evidence collecting. This article intends to set up the discussion from the following perspectives.Chapter 1 differentiates and analyzes the concepts of the independent self-defense with the lawyer defense and self-defense, making clear the basic theory of the independent self-defense right and summarizing its meaning and characteristics.Chapter 2 is an analysis of Chinese status quo of criminal defendant independent self-defense right. Beginning with the review of laws and regulations of China’s criminal defense system and the deficiency of criminal defendant independent self-defense right, section 1 summarizes the legislative status quo of China’s criminal defense system. Section 2 analyzes the hindrance to the establishment of criminal defendant independent self-defense right in China. The section subjectively analyzes the possible negative consequence brought by the establishing of criminal defendant independent self-defense right.Chapter 3 summarizes and analyzes the necessity and feasibility of establishing criminal defendant independent self-defense right in China. It states clearly that it is imperative to establish a criminal defendant independent self-defense right that conforms to China’s national conditions. And China has initially had the corresponding conditions. It includes theoretical basis, legislative basis, realistic basis and physical basis.Citing the example of German Law and American Law, chapter 4 reviews the evolution and status quo of litigant independent self-defense right overseas. It generalizes the development of the right in countries of Anglo-American Legal System and Continental Law System and summarizes its referencing meaning to China.Through discussing about the principle, specific programming, and supporting mechanism that criminal defendant independent self-defense right should adhere to, chapter 5 puts forward an envisage of establishing China’s criminal defendant independent self-defense system, aiming to offer some suggestions for establishing a scientific and localized criminal defendant independent self-defense system.Through the analysis of this article we can find that the establishing of the defendant’s independent self-defense right is the national requirement of implementing the principle of respecting and safeguarding human rights, the only way to activate defendant’s status of defender, and the safeguard for the realization of effective lawyer defense. In addition, it is feasible for China to establish criminal defendant’s independent self-defense right at current stage. First, the recognition of the defendant’s principal status lays theoretical foundation for the establishing of defendant’s independent self-defense right. Second, the revision of China Criminal Procedure Law in 2012 lays the legislative foundation for the establishing of the right. Third, the recovery of whole case transferring pattern and the judicial departments’ limited recognition of the credibility of the evidence collected by the defendant lays a practical foundation for the establishing of the right. Fourth, China’s rapid growing economy lays a material foundation for the establishing of the right.Therefore, this article makes a conclusion that it is imperative for China to establish the criminal defendant independent self-defense system. With regard to the re-designing of the meeting right, the defendant can independently arrange the time, frequency, and content of his meeting with the defense lawyer. The meeting right can be made into a combination of the lawyer’s meeting right and the defendant’s meeting right. With regard to the rearrangement of file-consulting right, the defendant has the independent file-consulting right, namely, the right to consult the prosecution’s files and written records. As a result, the file-consulting right is set up as an organic combination of lawyer’s file-consulting right and defendant’s file-consulting right. While with regard to the re-designing of the right of requesting investigating and evidence collecting, the defendant can independently make the request of investigating and evidence collecting to the court of law. This enables the evidence in favor of the defendant to be presented in the court of law by means of the forcible measures of the court of law. Whatever it is the meeting right, the file-consulting right, or the right of requesting investigating and evidence collecting, they all can be made the combination of the lawyer’s exercising of the right and the suspect’s or the defendant’s exercising of the right. Only both parties coordinate with each other can the defense right be fully exercised.