Research On Duty Lawyer System Of Criminal Legal Assistance

In recent years,with the advancement of the reform of litigation system centered on judgment in China,especially the rise of the contractual litigation system such as the system of leniency on admission of guilty and acceptance of punishment,the state's requirements for judicial human rights protection have been continuously improved and duty lawyer system of criminal legal assistance is gradually active in our field of vision.In addition to playing an important role in guaranteeing the legitimacy of the procedure and guaranteeing the defendant's litigation rights,duty lawyer system of criminal legal assistance has broadened the way of legal assistance in China.It is a key supplement to Chinese legal assistance system and enriches Chinese criminal system of advocacy.This paper makes a systematic study on the duty lawyer system of criminal legal assistance.The main body of the article is divided into five parts.The first part focuses on the history background and reasons of the rise of the duty lawyer system in the world,as well as the establishment and development process and the three major litigation values of this system in China.The second part is the empirical research section.Through field surveys of legal assistance workstations,interviews with a number of duty lawyers and judicial officials,we understand the current status of the system in China and strip out some subsistent dilemmas,such as the distorted role of duty lawyers,formalized legal assistance and difficulties in litigation procedure connection.The third part focuses on the internal motivation of operated obstacles of the system.The main line of logic is that the upper-level law doesn't clearly defined the legal role of the duty lawyer,which leads to the conflict between the insufficient defense rights and the practical duties of the duty lawyer.In addition,the assigned service model is random and the system funds and the number of the duty lawyer are insufficient.Duty lawyers fall into the "trust crisis" and generate self-cognitive bias,which has caused many obstacles to the operation of the system.The fourth part studies the duty lawyer system in the UK,Japan,Canada and the public defending lawyer system in the United States by the horizontal comparative legal research method and four referenced points come up.The fifth part is the essence of the paper and proposes the improvement of Chinese duty lawyer system of criminal legal assistance.First of all,the legal role of the duty lawyer should be clearly positioned and the defender status of the duty lawyer is established.This is the fundamental core and logical starting point for improving duty lawyer system.Secondly,in terms of the right content,it should be ensured that duty lawyers have basic rights to defend,such as the right of meeting and reading sufficiently.At the same time,the duty lawyer should have the core rights in cases of leniency on admission of guilty and acceptance of punishment,such as the right of negotiation and the right of lawyers-on-site.Then this paper proposes two types of litigation procedure connection models.First,the mode of connection between duty lawyers and general defense lawyers: following the standard of criminal cases of light punishment and the principle of being voluntarily chosen by the accused,the duty lawyer can be transformed to the general defense lawyer for providing court defense services;second,the mode of connection between different duty lawyers in different litigation stages: At the investigation stage,the written materials of duty lawyers' work are formed and materials are transferred to the judicial offices with the files to facilitate the defense of the duty lawyers involved in the stage of prosecution and trial.Finally,from four aspects of hardware configuration,procedure support,team construction and funding guarantee,the paper puts forward specific measures to improve the guarantee mechanism of the duty lawyer system,so that the system can operate better and play a greater value in criminal procedure.