| The appointed defense system in China has played an important role in the protection ofthe accused defense’s rights and the realization of judicial justice since its establishment.However, in recent years the judicial practice has indicated that the appointed defense systemin China has some defects, such as narrow scope of application, practical stage lag and lowquality of the appointed defense cases. This phenomenon has great concerns with the fact thatour country’s appointed defense legislation is not scientific enough and the supporting systemis not that perfect. With the development of the cause of human rights, the deep-going ofjudicial reform and enhancing consciousness of civil rights, it’s particularly important toimprove the legislation of our country’s appointed defense system as well as the supportingsystem.Besides the abstract and conclusion, the text is divided into four parts, about thirtythousand words.The first part is an overview of the concept, properties, values and types of the appointeddefense. Appointed defense refers to system that in the process of criminal procedure, thejudicial authority, with the power of investigation, prosecution and trial, provides defense forthe suspect and the defendant who meet the specific legal conditions. Appointed defensesystem has dual attributes in the form of both the country’s and the special accused’s rightsand obligations. The establishment of the appointed defense system is of vital significance forensuring the enjoyment and exertion of the special accused’s rights, regulating the prosecutionauthorities and guaranteeing the judicial justice in criminal process. According to the differentstandards, the appointed defense comes in the form of the appointed defense based on power,the appointed defense based on application, arbitrarily appointed defense and forcedappointed defense.The second part mainly deals with the appointed defense system in terms of comparisonanalysis.From the view of the application scope, the United States’ appointed defense systemadopts the "legal aid on requirement" mode, that is to say, those poor accused with nodefender must be provided with the defense aid. Germany, Japan and China employ the"critical cases" mode, stating that the system can be applied to the old, young, disableddefendants as well as those who are mentally handicapped or may be sentenced to years. From the perspective of application stage, the appointed defense system adopted in US,Germany and Japan is in usage through the whole litigation process, but the system in ourcountry is a little lagging behind, only applied during the trial stage. In terms of theimplementation subject, the US, Germany, Japan and China all provide that it is the neutralcourt that exerts the designation right and the case will be handled by the lawyer. But thepublic defender system form the US is well worth our learning. With regard to the reliefprocedure, the United States, Germany and Japan have set up diversified rules, such asexclusionary rule of illegally obtained evidence and appeal procedures, so as to ensure thesmooth implementation of appointed defense system. By contrast, the appointed defensesystem in China is short of related relief procedure.The third part is to study the defects of the appointed defense system in China from thelegislation and support mechanisms. In terms of legislation, firstly, the applicable case ofappointed defense in China is so unscientific that the scope of the forced appointed cases aretoo narrow and the arbitrary appointed cases are too broad. Secondly, it’s too late for theappointed defense to apply only to the trial stage. Thirdly, it’s relatively onefold that only thecourt has the authority to start the appointed program in which the defendant lack ofparticipation. Finally, the relief program against violation of appointed defense is missing. Interms of the support mechanisms, our criminal legal aid system is short of enough aid fundsand case-handling staff. What’s more, there is no effective mechanisms to ensure the qualityof the appointed cases.The fourth part is about how to make the appointed defense system perfect in aspects oflegislation and supporting system. To begin with, the application stage should be extended tothe investigation stage. Secondly, we should expand the application scope of appointeddefense by adding those mental patients who are not completely unable to recognize orcontrol his behavior and elderly people who is over seventy-five when he commits a crimeand those who may be sentenced to more than ten years of fixed-term imprisonment or lifeimprisonment. Meanwhile, we should adopt the appointed defense based on application. Then,we should endower the suspect and the defendant with the right and opportunity to choose theappointed lawyer. Finally, we must perfect relief program for the violation of the appointeddefense. When it comes to the supporting system, first of all, on the basis of the expansion ofgovernment funds, we should make sure that there will be adequate criminal legal aid fundthrough various channels to raise funds. Secondly, we should increase the investigators to handle the appointed cases through the establishment of public counsel, expanding the "1+1"volunteer lawyers scale and encouraging the social lawyers to undertake the duty of legal aid.At last, we must establish the quality guaranteeing mechanism for criminal legal aid cases toenhance the quality of the appointed defense case by way of supervision and post-supervision. |
