| In the context of the judiciary-centered judicial reform has entered the deeper waters and the critical period,improving the defense system and enhancing the equality between the prosecution and the defense have become an important link in the practice of the principle of safeguarding human rights in the field of criminal procedure law.However,due to the large gap between the rich and the poor in China,less counsels,the legal aid system has strict auditing standards and other objective conditions,nearly two-thirds of the prosecuted have become a blank area for counsels to defend,unable to use counsels’ professional knowledge to defend its legitimate rights and interests.The introduction of the duty counsel system has undoubtedly provided new ideas for improving the defense rate and enhancing the defense ability.It has also become an inherent requirement for the successful implementation of guilty confession cases,but it is limited in the actual operation due to the unclear positioning of the duty counsel.Therefore,this article hopes to introduce the role of the duty counsel system as the starting point,draw on and analyze the research results of domestic and foreign theories,and demonstrate the proper and realistic positioning of duty counsels under the existing judicial framework.And the author try to propose related measures for institutional improvement.In addition to the introduction and conclusion,this article consists of six parts,and from the two levels of theory and practice analyzes the duty counsel system,especially the role of this system.In the first part,the overall situation of the duty counsel system is introduced.By comparing with the traditional legal aid system,this system is characterized by its extensiveness,preliminaryness and immediacy,and the system is analyzed from both theoretical and practical perspectives.Starting from the second part,this article focuses on the prominent issue of the role of duty counsels.It is hoped that through the two dimensions of corresponding positioning and actual positioning,the role orientation will be clarified and the future institutional reform path direction will be specified.Among them,the second part analyzes the original intention and value base of the duty counsel,and clarifies that the role should be the defender.The third part systematically introduces and analyzes the legislative status and judicial practice of the role of duty counsels outside the territory and Hong Kong,and inspires them from the advanced experience of appropriately restricting their rights under the premise of insisting that the role of the duty counsel should bedefender in order to provide a more gradual and rational path for our country to improve the system in the future.The fourth part focuses on the actual role orientation of the duty counsel in our country.Through the combing of the views of the defender’s identity and the legal assistant’s identity in the theoretical circle,from the four aspects of legislative basis,legislative intent,organizational structure and operational effectiveness.To be discerned,it is ultimately pointed out that the duty counsel is more inclined to provide the role of legal counselor and witness.The fifth and sixth parts are based on the idea of finding the problem-solving the problem,aiming at the current dilemma that the current duty counsel does not have the identity of the defender,and try to explore a suitable solution path to establish a gradual expansion and perfection of the counsel’s right to defend.The way and means of doing so,together with the traditional legal aid system,constitute a diversified legal assistance system that complements and develops synergistically. |
