On The Realization Of Effective Defense In Death Penalty Cases

With the promotion of trial work in "full coverage" defense in criminal cases,the coverage rate of criminal defense in China will be significantly improved in the short term.Therefore,future research on defense should pay more attention to how to improve the quality of defense.Regarding this issue,the US and European countries have put forward the concept of "effective defense".At present,research on effective defense in China has always been focused on establishing the American litigation system by emphasizing the defects of the Chinese death penalty defense system.Based on a comparative analysis of effective defense in Europe and the US,and the reality of China's criminal defense system,this thesis puts forward some suggestions on how to achieve effective defense in death penalty cases in China to promote China's defense system.The first chapter introduces the concept of effective defense and the theoretical basis of effective defense.This part first defines the concept of effective defense to clarify the object of this thesis,and then analyzes the theoretical basis of effective defense,including human rights protection and due process.The second chapter analyzes the current situation in China's defense system.Compared to the current research literature,this thesis pays more attention to the disequilibrium of pretrial procedure on the institutional level and the influence of the defense principle on legal defense.The disequilibrium of pretrial procedure is mainly manifested in the absence of litigation procedure,the situation of lawyers having right without remedy,and the contradiction between the expansion of lawyer's rights and the increasing risks that come with it.The shortcoming of the defense principle is that it places too much emphasis on lawyers' independence.The third chapter introduces the practice of extraterritorial effective defense and the insights it could offer to China.Regarding the practice of effective defense abroad,this thesis focuses on the "triangle model" of effective defense in Europe and the US Supreme Court and federal court's perfection and expansion of ineffective assistance of counsel.The second part of this chapter is based on China's criminal procedure model,legal system,judicial practice and judicial reform path,analyzing the insights that extraterritorial experience could offer to China.The fourth chapter mainly puts forward the possible ways and means of constructing the effective defense in death penalty cases in China.This includes the establishment of a defendant-oriented defense principle,the overall development of a duty lawyer system and the application of relatively independent sentencing procedures in death penalty cases.The conclusion of this thesis is that,based on the judicial reality and litigation structure of China,establishing ineffective assistance of counsel is not an ideal way to solve the low quality of defense in death penalty cases in China.As for effective defense as a concept and principle,China should look to its realization in Europe for insights.