The Misconception Of Effective Defense

Effective defense originated in the United States,Counsel for the defence shall conscientiously fulfill his duty of defence and shall actively,in respect of all his rights,make Suggestions in favour of the mitigation or exemption of the accused from the crime.Finally,it achieves the reasonable effect expected by the accused and the defense.Adhering to this concept,Chinese scholars believe that to achieve effective defense in China,it is necessary to take lawyers as the center,protect lawyers’ right to defense,improve lawyers’ professional quality,and strengthen the supervision of lawyers.However,lawyers who do their duty in defense of defendants may be rejected by judges and regarded as "hardcore lawyers".This is the starting point of this paper.There are some deep structural factors in the effective defense system.But Chinese scholars don’t realize this.Therefore,it becomes the concept of "mysticism",and clarifying this concept is not only conducive to analyzing the dilemma of China’s effective defense system,but also to advocating a structuralist research method of "surface systems-deep structure".Through the comparative analysis method and structuralism research method,taking the lawyer as the center,the trial method as the center and the criminal procedure structure as the center of the three levels of analysis framework,the structure of the effective defense system in the United States is deeply analyzed,and it is found that the effective defense system must be based on the litigant principle.However,China lacks the structural basis of party doctrine.Therefore,it is impossible to really introduce an effective defense system.Nor can lawyers be blamed.Only in the litigant doctrine of the litigation structure,will inevitably emphasize the role of lawyers,and will there be effective defense and invalid defense;In the authoritarian litigation structure,the role of lawyers is optional,but only related to the judge.Therefore,there will only be a mistrial system to hold the judge accountable.Only by transforming the litigant doctrine of the criminal procedure structure,weakening the power of the judge and strengthening the equal confrontation between the prosecution and the defense can the effective defense system be realized.