On The Effectiveness Of Procedural Defense

For a long time,most of the defense in China's criminal courts is substantive defense.That is,from the perspective of the facts and the law,to seek the results of the judgment that the criminal suspect or defendant is not guilty or committed a misdemeanor.Until the issuance of the"Regulations on Several Issues Concerning Excluding Criminal Illegal Evidence" in 2010,and the amendment of the "Criminal Procedure Law" in 2012,the rule of exclusion of illegal evidence was gradually established in legislation.It has created new opportunities for the procedural defense of procedural violations by the state public authorities.And a series of regulations involving procedural defense also show increasing emphasis on it.However,the law will not take effect on its own.With the development of criminal legislation and the advancement of judicial reform,the defense lawyer's procedural defense has shown a large-scale increase,and gradually developed a unique mode of operation.However,procedural defense is still in a predicament in the judicial practice.In this context,this paper intends to explore the effectiveness of procedural defenses.The first chapter is to raise the question.In the narrow sense,procedural defense means that in the course of criminal proceedings,when the investigators,prosecutors or judges violates statutory proceedings,the defendant applies to the court for review of the conduct so that the court can make a procedural sanction declared invalid.However,it is an offensive defense,there have also been extreme cases of conflict between the judge and the defender in judicial practice,resulting in a nominal contradiction.The second chapter is the analysis of the effect of procedural defense.The procedural defense,especially the exclusion of illegal evidence,is rarely adopted by the court in the judicial practice.This has basically become a consensus.However,I believe that the analysis of the effectiveness of procedural defenses should establish more detailed standards,that is,proceed from the connotation and value of procedural defenses,and examine the actual effects of procedural defenses on the basis of its due effects.Then it is found that in the judicial practice,it has no power to remedy the rights,it cannot contain the abuse of power,it has little impact on the substantive judgment,and it even raises new issues of conflict between the judge and the defender and the risk of lawyer's practice.As for the new attempts of defense lawyers in judicial practice,although it has achieved the effect of substantive defense and won the recognition of theoretical and practical circles,it deviates from the goal of procedural defense,and it is not the effect of procedural defense exercise itself.Therefore,I conclude that the procedural defense is ineffective in our country.The third chapter is the analysis of the reasons for the invalidity of procedural defense.Firstly,there are misunderstandings about the value and goals of procedural defense.This leads to errors in judging the effectiveness of the procedural defense based on the result of the entity,and also brings negative effects to the procedural defense.Therefore,it is necessary to clarify.Secondly,procedural defense is not perfect in system design.Finally.our country's judicial environment also constrains the effective implementation of procedural defenses.