The Study On The Perfection Of The Assistance Of Counsel In The Leniency System On Admission Of Guilty And Punishment

In recent years,the leniency system on admission of guilty and punishment has been a hot topic in the field of criminal procedure.From the initial launch of pilot work in 18 regions,to the article of leniency system in the Criminal Procedure Law.It has developed rapidly.The leniency system on admission of guilty and punishment is also a hot topic in academic circles.One of the widely discussed topics is comparative law research with plea bargaining in the United States.Due to the bias of authoritarianism and legal traditions of civil law countries,the plea bargaining system was once criticized,and it has long been considered a watershed between common law systems and civil law systems.However,in recent years,civil law countries have established plea negotiation procedures with local characteristics on the basis of absorbing and drawing on the reasonable factors of the plea bargaining system.This is the case of the leniency system in China.Compared with the leniency system on admission of guilty and punishment in China,plea bargaining has developed in the United States for a longer time,it has a wider scope of application and a more complete system.Although our country's leniency system is different from the plea bargaining system fundamentally——it is not allowed to negotiate charges and counts,the court's final leniency punishment must be within the range prescribed by law.It cannot be denied that the leniency system absorbs the features of plea bargaining system,such as equality of prosecution and defense,consensus negotiation.We can learn from the experience left by the United States in exploring plea bargaining,such as effective assistance of counsel,strict judge review,sufficient protection of rights,sufficient sentencing preferences and so on.We could combine China's national conditions to build a leniency system with Chinese characteristics.This article starts with the effective assistance of counsel,investigates the development of confession and punishment in China and learns the development process and system specifications of effective assistance of counsel in plea bargains in the United States.Absorbing the reasonable core of it and attempting to make reasonable assumptions to improve the system of counsel's assistance.This article consists of four chapters.The first chapter starts with the question of counsels' help in the leniency system on admission of guilty and punishment in China.Firstly,it sorts out the development of duty lawyers in China,especially in the leniency system on admission of guilty and punishment.Then points several problems of assistance of counsel in China's current leniency system,including the lowparticipation of counsels,limited functions,inconsistent solutions when contradicting internal views and the inability to guarantee the working environment.Then analyze and discuss the current situation of these problems.I think there are three aspects: the concept of effective defense has not been formed,the status of the duty lawyer is not clear and the supporting system is not perfect.The second chapter introduces the effective assistance system of counsels in the plea bargaining.The effective assistance system of counsels in plea bargaining does not exist in the initial stage of plea bargaining,but is constantly improved in the judgment.The first section of this chapter is the semantic analysis of “effective assistance” in China's translation.The second section is the effective assistance provided by counsels in plea bargaining in case law and codes of practice.It introduces important jurisprudence such as Strickland v.Washington,Lafler v.Cooper,Missouri v.Frye,as well as the Criminal Justice Standards,Performance Guidelines,and local criminal defense regulations of the American Bar Association.The third section introduces the behavior and solutions of counsels' ineffective assistance and analyzes the specific situations of effective and ineffecctive assistance.Next,the form of remedy for ineffective assistance was discussed,mainly discussing ineffective suggestions that led the defendant to plead guilty,ineffective suggestions that failed to communicate the defendant's offer for plea bargaining,ineffective suggestions that caused the defendant to refuse a plea bargain,and go to the court trials.The fourth section analyzes the problems existing in the counsel's assistance in the plea bargaining.For example,the assistance of counsel to help the poor defendant is stilldifficult to guarantee,and lacking the effective way of written records is also introduced.The fiftth section is the point of view of the academic circles discussing the solutions to the above problems for learning and reference.The third chapter discusses the necessity and feasibility of establishing an effective assistance system for counsel in China.In order to maintain the legal rights of the parties,to achieve procedural justice,to improve the status of defense and to shape a new type of defense relationship,China needs to establish the effective assistance of counsel.The independence of leniency system and the development of counsels' assistance have provided a feasible guarantee for the establishment of effective assistance of counsel.The fourth chapter preliminarily constructs the effective assistance of counsel in the leniency system.The first question is to clarify the legal status of the duty lawyer as a defender,the intervention conditions of duty lawyer.Then make a specific construction.First,to clarify the judgment standards of ineffective assistance of counsel.Second,to strengthen written records and supervision.Third,to clarify the clients 'final decision.Fourth,to provide remedies for defendants' rights that have been violated due to invalid assistance of counsels.