| The leniency system of guilty plea is an important part of the reform of the judicial system in our country,mainly to achieve the diversion of procedures for the simplification of criminal cases and to improve the efficiency of litigation.The system is based on the premise and legitimacy of the pleaded guilty by the accused.When the accused chooses to plead guilty voluntarily,the summary procedure and the expedited procedure will be applied,and the simplification of the proceedings will inevitably damage the litigation rights.The main purpose of the duty lawyer to participate in the pleading guilty case is to ensure the voluntariness,authenticity and legitimacy of the confession of the acquitted person.This is the proper meaning to ensure that the guilty plea is properly and lenient.Regardless of the current national normative documents such as the relevant normative documents and the revised Criminal Procedure Law,or from the practice of the pilot areas,the duty lawyer system has some problems on the legal norms and judicial practice that influence the operation of this system.In order to analyze and solve these problems in depth,this paper first explains the basic theories of lawyers participating in guilty pleas and confessions,and sorts out the outstanding problems in legal norms and pilot work,focusing on the analysis of the identity of duty lawyers.Learning from more mature judicial practice experience by drawing on the foreign lawyer's participation in the guilty plea negotiation process,this paper puts forward suggestions for improving the effective participation of lawyers on duty in China to realize the purpose of the establishment of the system.Based on the above logic,in addition to the introduction and thanks,the paper is divided into the following four parts for detailed discussion:The first part begins with defining the leniency penalty of guilty plea and the system of duty lawyers.It compares the difference between duty lawyers and entrusted defense lawyers and traditional legal aid lawyers.It analyzes the uniqueness of the duty lawyer system compared with the traditional aid legal system on characteristics:the non-specificity of the aid object,the preliminary nature of the service content and the timeliness and convenience of the service method.Finally,the necessity of the duty lawyer to participate in the confession and confession case is discussed in detail.The second part first examines the regulations on the setting,duties and working methods of the law in China,and then introduces the status quo of duty lawyers in the three regions of Hangzhou city,Guangdong province and Henan provinces.Finally,it summarizes the problems of the participation of duty lawyers in confession and punishment.There are outstanding problems in the legislative and practical aspects of the wide cases:the identity of duty lawyers is unclear,the litigation power is lacking,the participation time is lagging behind,the defense lawyers and legal aid lawyers are not well received,and the performance guarantee and assessment supervision mechanism are not perfect.The third part introduces duty lawyers' participation in Anglo-American legal system:the American defense law procedure,the British guilty plea negotiation procedure and the Civil Law System:the German penalty order procedure,French pre-trial confession negotiation procedure.Through comparative investigation,the following can be drawn from:fully guaranteeing the defense rights of defense lawyers,diversifying criminal legal aid and attaching importance to the effectiveness of defense lawyers in providing defense services in the guilty plea negotiation procedure.The fourth part proposes the suggestions of perfecting duty lawyers to participate in leniency cases of guilty plea with aiming the problem of duty lawyers system:it needs to define the identity of the defender and give his lawyer the necessary defense rights to perform his duties.Duty lawyers should have the right to be present at the time of interrogation and pleading guilty,and the right to read the question.It needs to establish a procedural sanctions and disciplinary mechanism for the duty lawyer's invalid defense to ensure the substantive and effective legal assistance provided by the duty lawyer.Constructing an effective connection mechanism between duty lawyers and entrusted lawyers and legal aid lawyers can improve the efficiency of lawyers' work.At the same time,it also needs to further strengthen the performance of duty lawyers,improve the qualification access,assessment and supervision mechanism and build a multi-level legal aid model. |
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