Effective Assistance Of Counsel Under The System Of Pleading Guilty With Lenient Punishment

The Guidance on the Application of the System of Pleading Guilty with Lenient Punishment have been issued by The Supreme People's Court,The Supreme People's Procuratorate,The Ministry of Justice,The Ministry of Public Security and The ministry of State Security,which formally introduced the concept of "effective assistance of counsel" to the Chinese criminal procedure law.Therefore,analyzing the understanding of "effective assistance of counsel" in other legal systems will help us to understand this concept more comprehensively.Based on the relevant precedents of the Supreme Court of the United States and the European Court of Human Rights,this paper first analyzes the different standards and reasons for the determination of "ineffective assistance of counsel" by the two Courts,and then summarizes some essential characteristics of "effective assistance of counsel".Under the inspiration of these essential characteristics of "effective assistance of counsel",this paper analyzes the functions that lawyers should play under the System of Pleading Guilty with Lenient Punishment in China.At the same time,this paper also realizes that under the System of Pleading Guilty with Lenient Punishment,the functions of lawyers will be restrained by the system.This paper distinguishes between "absolute prejudice" and "relative prejudice".This paper holds that the revision of the criminal procedure law in 2018 has in fact established a criminal procedure system in which both the "System of Pleading Guilty with Lenient Punishment" and the "normal trial procedure"are parallelly applied.The existence of such two sets of proceedings in parallel will inevitably lead to the defendant suffering from "relative prejudice" because of the defective behavior of the counsel under the System of Pleading Guilty with Lenient Punishment.This paper holds that in the present stage of the System of Pleading Guilty with Lenient Punishment,the emphasis on the formal meaning of"effective assistance of counsel" is greater than the emphasis on its substantive meaning.There is no effective remedy mechanism for the "ineffective assistance of counsel" under the System of Pleading Guilty with Lenient Punishment in China.At the present stage,whether the defendant has obtained the"effective assistance of counsel" is in fact in a completely uncensored state;In this state of non-censorship,the protection of the defendant's access to "effective assistance of counsel"in fact completely depends on the judicial authorities' self-consciousness.All these phenomena fully reflect that"effective assistance of counsel" has not become a relivable substantive right of the defendant under the System of Pleading Guilty with Lenient PunishmentThis paper advocates that under the System of Pleading Guilty with Lenient Punishment in China,the defendant's right to "effective assistance of counsel”can be materialized,and a powerful remedy mechanism for"ineffective assistance of counsel" can be established to guarantee it.This paper holds that the essence of the defendant's right to obtain "effective assistance of counsel" should start from two aspects:"state obligation" and "the relationship between lawyer and defendant".In order to establish a powerful relief mechanism for "ineffective assistance of counsel",it is necessary to incorporate whether the defendant has obtained "effective assistance of counsel" into the factors that courts at all levels must consider when making judgment,and combine the"timely" examination and correction of the court of first instance before the determination of the litigation result with the "afterwards" relief of the court of second instance.The defendant should be relieved not only for his wrongful admission of guilt due to the defective performance of the lawyer,but also for his wrongful admission of guilt late or not guilty due to the flawed performance of the lawyer.It should not only relieve the "absolutely prejudice" suffered by the defendant,but also relieve the "relative prejudice" suffered by the defendant.It is necessary to distinguish the examination standard of"ineffective assistance of counsel" between the first instance and the second instance.The second instance court should examine the performance of the lawyer on the suspicion of violating the defendant's "whether or not to plead guilty" with the independent standard of"anti-consequentialist",and the performance of other performance of lawyer with the standard of "consequentialist".