On The Dilemma And Solution Of Importing Effective Defense System In China

The concept of effective defense system originated from the adversary system of Anglo-American law system.In order to better balance the accuser and the defender,to better protect the Accused's legitimate rights and interests,to protect their right to defense,effective defense system came into being.As the improvement of the awarenessof human rights,democracy and the rule of law,the deepenedunderstanding of the relationship among the accuser,the defender and the judge,the right of defense from the self-defense to seek the help from lawyers,and then to obtain the effective defense,the effective defense system was regulated and perfected.On the one hand,effective defense system has theoretical significance in promoting procedural justice and substantive justice,protecting the Accused's legitimate rights and interests,and mending the balance of the public power and the private rights.On the other hand,there is also a guiding significance that cannot be ignored in practice.It can improve the recognition degree of the right to defense,and standardize the practice statusof lawyers.So we should be committed to introducing the effective defense system to China based on the actual situation in China.In our country,what is the connotation of effective defense has always been controversial.Song Yinghui,Bian Jianlin,Gu Yongzhong,Xiong Qiuhong and other well-known scholars have explained the concept and connotation of effective defense.This paper argues that the content of effective defense system is to regulate the behavior of lawyers,improve the quality of a lawyer,then it can balance the prosecuting and defending parties and safeguard the right of people being prosecuted.There are mainly five reasons:First,in the U.S.,effective defense system was set up for improving the quality of a lawyer,so in order to study,we should be consistentwith it.Second,the accused intimately related with verdict.Therefore to research system of defense right makes little sense.Third,non-attorney defenders are short of the specialized knowledge and practical training.It also do not conform to the defense team specialization trend in our country,so I think effective defense is unfavorable to them.Fourth,specialized agencies and the legal system should be supporting system for the effective defense system,the specialized organ can regulate by the criminal procedure law and other laws,the judicial system should meet the demand of practice,but should not be structured by the effective defense system.Finally,based on the current situation and problems of our lawyer,we need a special system to regulate.After discussing the related theory of effective defense,this paper takes the problems and dilemma that the effective defense system may encounter in the process of introduction to our country.Based on the research and study on the present situation of defense in our country,the relevant concepts of effective defense and overseas investigations,the paper puts forward targeted solutions to the problem and designs the system for the relief way of the accused when he/she violates effective defense.The paper discusses how to create the conditions for the introduction of effective defense system at present judicial environment by making use of the methods such as case analysis method,comparative analysis methodandliterature research method.This article is divided into five chapters:The first chapter mainly discusses the related conceptsof effective defense system,and aims at constructing a good theoretical basis for this article.This paper gives a general exposition on the concept and the recognizedstandard of effective defense.In view of the current controversy over the effective defense system: the question of the liability subjectand the purpose of establishing the effective defense,this paper puts forward its own view.It argues that the effective defense liability subject should only include the lawyer.On the question of the purpose of the effective defense,this article aims to ensure that the right to defense of the accused is not violated and that the defense advise is not required to be adopted and the policy has been strengthened.The second chapter mainly explores the value of effective defense.Effectivedefence is developed with the improvement of human rights,increased awareness of democratic rule of law,growing equally equipped consciousness,continue to enrich the content of the right to defend and foundation of confrontation system lawsuit pattern.The system has important significance in theory and practice.Theoretical significance includes promoting procedural justice and entity's justice,we need to research on it.The third chapter mainlyinvestigates the effective defense system of the United States.The effective defense system originated in the United States,Understanding the historical evolution of the effective defense system helps us for a more in-depth analysis to this system.At the same time,this article through six aspects: the right to cross-examine,counsel's basic rights such as meeting right,taking of evidence right,the presenceright,to get remedy for the criminal and setting up specialized agencies for death penalty cases.The above content want to introduce you what measures are taken in the United States To ensure the effective defense system can be implemented.Finally,it compares the situation of meeting right,lawyer's right to be on the scene,lawyer's right of investigation and evidence collection.The fourth chapter focuses on the dilemmas of the introduction of the effective defense system to our country.It discusses the shortcomings of the relevant provisions such asthe Criminal Procedure Law,the Lawyers' Law and the Regulations of Legal Aid System,and the lack of relevant supporting system and the bottleneck in practice.This chapter begins with the introduction ofthe present situation of the implementation of criminal defense in our country,from the comments on the three aspects: legislation present situation,the judicial status quo,and related cases.Then it talk about the introduction of the effective defense system under the judicial context of our country,and discusses the advantages of the introduction of effective defense system from four aspects: the emphasis on human rights protection,the strengthening of lawyer's right to defense,the change of China's litigation model and the establishment of judgment centralism.Thenit explains the defects in the three laws through the enumeration and statement of the statutes.after that,from the poor supervision and management of the criminal defense lawyer,the lack of incentive mechanism on lawyers to take "effective defense" as power mechanism andno disciplinary measures on defenders' laziness at exercisingright to defense.Finally,it puts forward that there is still a practical dilemma in the introduction of effective defense system to China,such as the deepened concept of emphasis on entity but ignoring procedure,the lack of trust in the lawyer,the legislation,the judiciary has a guardian to the lawyers,the low degree of criminal defense,the uneven level of business ability of lawyers.The fifth chapter presents the idea of effective defense.First of all,effective defense legislation should be clear,to establish effective defense principle in the constitution and the criminal procedure law.In a timely manner to introduce the reasonable and advanced concept of international judicial documents into our country.Then it will improve the effective defense of the supporting system from criminal legal aid system,criminal defense lawyers industry system,accountability system three aspects and establish a effective defenseassessment mechanism for lawyers: improve the defense lawyers' information base,establish defense quality assessment committee and develop a sound defense quality assessment standards.Finally,it constructs the relief system of the prosecuted person in violation of the effective defense situation and explains from the effective defense examination way,the burden of proof and the proof standard of effective defense,and the consequences of violating the effective defense,so as to provide better judicial environment for the introduction of the effective defense system to our country.