On The Realization Path Of Effective Defense

With the continuous development of China's Criminal Procedure Law,the rights protection system for criminal suspects and defendants in criminal proceedings has become increasingly perfect.The development of criminal proceedings in our country is undergoing a transition from the right of the accused to the assistance of a lawyer to the effective assistance of the accused to obtain a lawyer.The realization of effective defense in criminal proceedings has become the next step in the development of the right to defense.The realization of effective defense is of great significance for realizing the true "equal arming" between the prosecution and the defense,optimizing the practice environment for lawyers' defense,effectively carrying out the human rights protection of criminal suspects and defendants,and promoting fair trial.The study of the realization path of effective defense firstly analyzes the concept of effective defense,and analyzes the standard questions of effective defense and the invalid defense system.Secondly,it needs to combine the practice of the development of China's defense right to sort out the current development of China's defense right.The reality and concept of the impact on the effective defense of the realization of the factors;finally proposed measures to achieve effective defense in China.This article is roughly based on the idea of creating and demonstrating.The first part of this article begins with the concept of effective defense and sorts out the different understandings of domestic scholars about the concept of effective defense.The content of effective defense is rich.This paper believes that whether it is understood in a narrow sense or in a broad sense,effective defense can not be separated from two elements,namely:the subjective active elements of lawyers and the elements of defense protection mechanism.And put forward an interpretation of the concept of effective defense.That is to say,in criminal proceedings,under the premise that the public prosecution law authorities take the lawyer's rights seriously,the defense lawyers fully participate in the case,perform the defense duties,and protect the rights of the prosecuted.In this part,we also combed and analyzed the standard of effective defense and advocated judging the effective defense from the perspective of whether the lawyer's behavior affects the fair trial.The last part of this chapter describes the basic theory of the invalid defense system,and based on the current situation in China,discusses whether China needs to introduce an invalid defense system.The second part is to analyze the real factors that affect the realization of effective defense.First of all,in legislation,China still has no unified understanding of whether the right to defense belongs to the basic rights of citizens.This has caused the difference between the important right of the right to defense and other basic rights.In addition,the new Criminal Procedure Law of 2018 provides The duty lawyer system,this system plays a greater role in ensuring that criminal suspects and defendants are assisted by lawyers.However,due to their own positioning and scope of rights,duty lawyers are unable to provide effective legal assistance to the prosecutors.It is a preliminary legal advice and emergency legal assistance.After that,it analyzes the factors that affect the realization of effective defense in practice.The most representative is the undue interference of the judicial organs in the defense of lawyers.This is concentrated in the judicial practice as the "new and old three difficulties" in criminal proceedings,namely:meeting difficulties,difficult to read,difficult to investigate and collect evidence,difficult to ask questions It is difficult to prove the quality and the debate is difficult.At the same time,in view of the repeated problems in practice,especially in the formal defense of the designated defense,the issue of the defense of the field,China lacks a set of effective control system for the quality of defense.The third part is to analyze the conceptual factors that affect effective defense.The criminal concept of combating the crime of the sovereign has led to the pursuit of the crime detection rate and the settlement rate.The criminal certification standards have not been strictly enforced,and the result of the lack of attention to the rights of defense lawyers who are not regarded as members of the public security law cooperation relationship.The investigation-centered concept led to the fact that the trial process did not form a second test of the factual evidence of the case.The trial process did not have a significant effect on the facts and evidence of the case;and the investigation centered on the imbalance between the power of the prosecution and the defense.The rights of defense lawyers are not taken seriously and it is difficult to carry out their work effectively.The fourth part is based on the previous arguments on the basis,obstacles and causes of effective defense in China,and proposes measures to achieve effective defense in China.It is mainly composed of three major blocks,namely:the appropriate protection mechanism for the defense subject,the adoption mechanism for the defense opinion,and the quality control mechanism for the defense.That is to say,starting from the concept of effective defense,the realization of the elements of effective defense and the improvement of institutional guarantee elements.Gradually form a defense team based on lawyers,and establish a more perfect lawyer disciplinary system.In the case that the main elements of the defense lawyer are satisfied,it is required to strengthen the rationality of the legal documents in the criminal trial,and to document the decisions made by the courts;draw on the practice of prosecuting oneness,weaken the pre-trial judgment of the judges,and make the lawyers defend the opinions.There is room for survival,which also makes the trial process form a true secondary verification of the factual evidence of the case.By promoting the "inter-bank mutual evaluation" system to effectively soften the lawyer's low-quality defense,combined with the introduction of the invalid defense system in the death penalty case,promote fair trials,and build a control mechanism for the quality of defense.