Study On The Operation Mechanism Of The On-duty Lawyer System In China

The on-duty lawyer system is an important measure in the process of the judicial system reform that is being steadily promoted in our country at present.The concept of on-duty lawyer was put forward by China in 2006.In order to improve the relevant defense system and absorb foreign experience,the trial of on-duty lawyer was carried out in Xiuwu county,Henan province.With the advance of the pilot work,more and more provinces and cities have noticed the importance of the on-duty lawyer system,and have carried out the pilot work.The measures on the pilot work of the fast-track procedure of criminal cases in some regions,issued in August 2014,is the first time that the "on-duty lawyer system" has been formally proposed in China's legal documents.The opinions on promoting the reform of the trial-centered criminal procedure system released in October 2016 reiterated the on-duty lawyer system once again,making the system not only an experimental innovation,but also a normalized system design.According to the first paragraph of article 36 of the newly revised criminal procedure law in 2018,“legal aid agencies can station lawyers on duty in people's courts,detention centers and other places.If the criminal suspect or defendant does not entrust a defender,and the legal aid institution does not assign a lawyer to provide defense for him,the lawyer on duty shall provide legal advice,suggestions on procedure selection,application for changing compulsory measures,suggestions on case handling and other legal assistance to the criminal suspect or defendant.” This is the first time that the on-duty lawyer system has been formally written into Chinese law,which clearly indicates that the on-duty lawyer system has finally been established in China after many years of pilot and promotion.Scholars and practitioners have conducted a lot of discussions on the on-duty lawyer system,and studied similar systems in different countries and regions,such as the British on-duty lawyer,the American public defender,and the Canadian on-duty lawyer,etc.,mainly focusing on the value analysis and concept definition.Part of the research thoroughly investigated the problems related to the on-duty lawyer system,and put forward suggestions for improvement.However,as a new judicial system,the on-duty lawyer system is slightly deficient in relevant academic research and practice accumulation.At present,many discussions and researches focus on the on-duty lawyers themselves,and the attention on the overall construction,operation and effect of the on-duty lawyer system is a little insufficient.Especially since the on-duty lawyer system has been implemented in China,there is still a large space for the study of the system operation itself.This paper chooses to study the operation mechanism of the onduty lawyer system from the perspective of functional positioning,analyzes the reasons for the problems in the operation of the system,and proposes ways to improve it,so as to contribute to the development of the on-duty lawyer system in China and make its own efforts for the construction of judicial civilization in China.