Study On The Legal Position Of The Duty Lawyer Of Chinese Criminal Procedure

Duty lawyer system has developed more than ten years in China from trial to complete application.It plays an important role in protecting procedure justice of the lenient punishment system of guilty admission and punishment acceptance,but the legal position of the duty lawyer in the criminal proceedings of our country has not been clearly defined.It was the fuzzy definition in law-making and controversies in theory that caused the function of duty lawyer can not be exerted effectively.However,the positioning of the duty lawyer is the key to realize its function of protecting judicial justice.Therefore,this problem deserves research and attention.This paper takes the position of the duty lawyer in the criminal proceedings of China as the research object and uses several research methods including literature research and comparative analysis and so on.This paper proposes the idea that the ideal function localization should be as defenders and then emphatically demonstrates it,after summarizing the theoretical controversy of the positioning of the duty lawyer and analyzing the practical problems caused by the unclear position of the duty lawyer.Finally,this paper tries to propose some suggestions to perfect it.This paper has five parts.The first part briefly introduces the development of the duty lawyer system in China,studies the legislative status and the research status of this system and points out that the legal position of the duty lawyer is unclear in law-making and has not reached a consensus in theory.The second part summarizes four viewpoints of the legal position of duty lawyer in theory and the reasons that support these views,meanwhile,this part also analyzes the practical problems those are the litigation rights of the duty lawyer have been limited,the legal assistance which duty lawyers provide is not substantial and the judicial justice is not guaranteed.The third part proposes the idea that the ideal function localization is as defenders and demonstrates its rationality from five aspects: the development of defense theory in China,the status of criminal defense in our country,the developmental trends of the existing legal documents,the concept interpretation by using hermeneutic methods and the reference to the foreign law,meanwhile,discusses the irrationality of the other three viewpoints and reasons.The fourth part proposes some suggestions to perfect it:legislation should specify the legal position of duty lawyers and grant them enough procedure rights and improve mechanism for the remedy of rights.The fifth part is the conclusion that summarizes this paper's main opinion and expects our country could resolve the unclear legal position of duty lawyers as quickly as possible and provides an outlook of the further improvement of the duty lawyer system in China.