Study On The Right Of Application Of Defense Lawyers In Criminal Proceedings

The withdrawal of the defense lawyer in the nanny arson case in Hangzhou has aroused public concern.The reason for the withdrawal of the defense lawyer is found to be that the defense lawyer's application was not replied and approved by the court.The withdrawal of the case raises a question,that is,what is the right of defense lawyers to apply and how to protect and remedy the right of application.In fact,the right of application,as a legal right enjoyed by defense lawyers,has been widely applied in judicial practice,and many lawyer's rights can only be realized in the name of application.The fourth plenary session of the 18 th CPC central committee held earlier,"decision on several major issues concerning the comprehensive promotion of the rule of law",also clearly put forward the protection of lawyers' right of application.It can be seen that lawyers' right of application has changed from a right in practice to a right "on paper" and has a certain status in law.However,there is no unified understanding of what application right is.At the same time,the theoretical circle is not optimistic about the necessity and value of the research on application right.In fact,it is of great significance to expand the connotation of the application right as a native right,fill in the research gaps,and improve the procedures of proposing,receiving,reviewing and replying to the application right to protect the rights of the parties,embody the people-centered judicial concept,and shape the judicial resilience.Therefore,this paper based on the above starting point to study the right of application,put forward the theoretical framework of the right of application and guarantee the full realization and relief of the right,is still of certain significance and value.This paper makes an in-depth study of the right of application through the following chapters: chapter one puts forward the connotation of application right.This paper discusses the legal origin of the right of application in legislation,and analyzes the relationship between the right of application and the right of defense.On the basis of legislation and relevant theoretical research,this paper puts forward the connotation and extension of the right of application.From the perspective of the source of the right of application,the right of application of defense lawyers refers to the general term of the right of defense lawyers to apply to the relevant case handling organs in the name of application in order to exercise the duties of defense.From the perspective of the exercise of rights,the application right not only includes the right to apply,but also includes a series of procedural rights related to the realization of the application content,such as the receipt,reply and adoption of the application enjoyed due to procedural guarantee.The second chapter,on the basis of empirical research,abstracts and summarizes the problems existing in the exercise of defense lawyers' right of application in judicial practice,including difficulties in realization and relief.The difficulty of realization is reflected in the insufficient cognition of the rights of defense lawyers,the poor situation of accepting and responding to the application,and the lack of explanation of rejecting the application.It is difficult for the relief to be manifested in the fact that the relief willingness of lawyers still needs to be strengthened and the relief channels are generalized.Chapter three analyzes the causes of the problems arising from the exercise of defense lawyers' right of application.In the process design,the right of application itself is lack of procedural rigidity and from the third party in the middle of the judgment;At the institutional level,the failure of the criminal justice system to provide adequate space and the incompatibility of accepting multiple roles from the authorities also create tensions;On the ideological level,the three organs of public security law have the thought of official standard,and the concept of the current legal professional community is missing.The fourth chapter puts forward the corresponding Suggestions from the realization and the relief of the right of application.In terms of the realization of the right of application,detailed Suggestions are put forward from the authorization,acceptance and review of the application to the reply of the application,so as to establish a perfect right guarantee mechanism and put forward a punishment mechanism for abusing the right of application.In the aspect of the relief of application right,it takes the existing procuratorial relief as the core,improves the procedure of the relief of application right,and takes the diversified linkage relief as the supplement,and brings the court,judicial administrative organ and legal association into the relief subject,so as to realize the diversified relief.