The Protection Of The Accused's Defense Right In The Confessing Guilty And Pleading Punishment Procedure

The lenient system of confessing guilty and pleading punishment is the embodiment of criminal policy of temper justice with mercy in China's criminal proceedings.It is both substantive law and procedural law and contains the dual value pursuit of justice and efficiency.During general procedure,the guarantee of the right to defense of the suspect and the defendant is confirmed by the rights of the accused and the advocate,such as the right to meet,the right to review papers,the right to choose procedures and the right to cross-examine,so as to realize the restriction of public power.Key contents of this article are four aspects in cases relevant with the lenient system of confessing guilty and pleading punishment.Firstly,how to orientate the right to defense of the accused.Second,where are the theoretical and practical foundations for the guarantee.Then,how to make innovations and improvements on the current institutional basis.And last but not the least,how to conduct effective guarantee and succour the public power effectively on confronting public rights.The article consists of five elements and gives the following research on the right to defense of the accused under the lenient system of confessing guilty and pleading punishment.In the first section,the relevant theories of the defendant's right to defense is introduced.Basic concepts of the defendant's right to defense is initially analyzed.Then two sub-concepts under the defendant's right to defense,which are the defendant's independent defense and the lawyer's defense.Their interaction connection is also analyzed to further clarify key procedures of the protection.As for the second section,the risk of defendant's defense right protection under the plea system is mainly stated,which is divided into the following elements: the defendant's voluntary confession is difficult to guarantee,and the participation of lawyers on duty and other two aspects,reasons and expressions of the existing risks in which are then discussed.The third part presents the analysis of the theoretical value of the protection of the defendant's right to defense.And the fourth part generally discussed overseas experience of the protection of the rights of the accused in the plea bargaining system.In this part,experiences from other countries are discussed and then bases on the continental legal system to research on the plea procedure of France,the criminal consultation procedure of Italy and the special system of plea bargaining system of the United Kingdom and the United States to protect the defendant's right of defense in the civil law system.All of these above will offer useful reference for the improvement of China's right of defense on the foundation of analysis and conclusion.The fifth section aims at two major problems from the second part,which are the voluntariness of the accused to plead guilty and the participation of lawyers on duty.It begins with the system of confessing guilty and pleading punishment,puts forward eight suggestions from the perspective of the accused and the attorney on duty,hoping to make a number of feasible contributions to the protection of the accused's defense right in the confessing guilty and pleading punishment procedure in China.