Research On The Lawyer's Right To Defence In The Second Criminal Procedure Of China

The criminal second-instance procedure is an extremely important part of the criminal procedure.In addition to carrying the dual functions of trial supervision and rights relief,the human rights protection of the accused is even more significant.The status and role of the right to defense in the criminal second instance process is particularly important.Because of the defendant's professional level and legal knowledge,it is difficult to find the problem defects in the first-instance judgment.Defence lawyers are particularly important at this time.They have professional legal knowledge and defense experience.They can specifically propose defects and loopholes in the first-instance judgment,and provide effective defense for the appellant.At present,with the revision of China's Criminal Procedure Law,the criminal defense system has been developed and improved to a certain extent.However,compared to legislative and theoretical research,criminal defense has encountered many obstacles in judicial practice.It is difficult to implement the legislative provisions effectively,and criminal defense lawyers are faced with embarrassing situations—the right to practice and the practice environment are not well protected.Therefore,in order to promote the development of China's criminal defense system in the future,to promote the relevant legislation to be more perfect,and to make the relevant theories more mature,it is necessary to further strengthen the protection of lawyer's defense rights.And to optimize the practice environment of defense lawyers,pay more attention to the implementation and implementation of judicial practice.The protection of the lawyer's right to defense is also a further extension of the human rights protection of the prosecutor.Therefore,in order to achieve fairness in the criminal trial and fully protect the litigant's litigation rights,it is necessary to discuss the lawyer's right to defense in the criminal second instance procedure.The article is divided into five parts: The first part introduces the problems' background,introduces the status quo of research at home and abroad,points out the significance and direction of the research,and puts forward the research ideas and methods.The second part expounds the relevant theories of the right to defense,analyzes the attributes and characteristics of the right to defense and its theoretical basis.On the basis of fully understanding the system of defense rights,it lays the groundwork for the following.And further,it explores the defense lawyers exercising their rights when they encounter obstacles and difficulties in the in the second instance of criminal proceedings.It explains the problems of lawyer's right of defense from two perspectives: pretrial procedure and trial procedure.The pretrial procedures include the difficulty of investigating and collecting evidences by the defense lawyers,the difficulty of reviewing the papers,and the lack of defense time.The trial procedure has a low rate of second-instance trials,the homogenization and non-independence of the second-instance,and the low participation of defense lawyers,and the defense opinions are difficult to adopt,etc.The third part analyzes the reasons of the problems in the second part.It mainly from the influence of traditional legal culture,the administrative color of the trial system,the unbalanced status of both the prosecution and the defense,and the restrictive factors of the difficulty of the second trial,etc.The fourth part mainly proposes suggestions for existing problems: adhere to the principle of presumption of innocence,to improve the procedural sanctions mechanism,and solve the difficult problem of lawyer's defense,and improve the trial rate of the second instance by implementing the “centre of trial center” and strictly restrict the conditions for not hearing trials.The “hidden rules” insist on trial independence.Finally,suggestions are made from the perspective of improving the quality and practice ability of defense lawyers.This part is also the purpose and focus of this article.I hope that the lawyer's right of defense and the legitimate rights and interests of the defendant in the second-instance procedure can be better protected,and achieve procedural and substantive justice.