The Plight And The Way Out Of Lawyers’ Defense Activities In China

The defense system is one of the very important systems in the criminal litigationarea. As a worldwide and continuous development system, the lawyers’ defense system isdeveloping with the human reason and the social economy. And it is also the consequentresult with the appearance of the occupational groups. The defense system plays anextraordinary important role on the aspect of balancing the strength between the parties,maintaining the parties’ legal rights and promoting the course of justice. And also because ofthis, the content of the defense system is embodied in many international judicial documentssuch as "The International Covenant on Civil and Political Rights"、"The InternationalConvention on the Principles of Lawyers’ basic Effect "and" The Minimum Standards on theTreatment of Prisoners".In our country, besides being a constitutional right that formulated in the constitution, thecontent of the lawyer’s defense’s right is also embodied in the basic law as "CriminalProcedural Law" and the newly issued "Lawyers’ law" in2007. And from the draft of"Criminal Procedural Law" to the "Lawyers’ law", we can see that the lawmakers tried veryhard on improving our defense’ practice environment. But the indisputable fact is, since theimplementation of the laws, the effect of the implementation is unsatisfactory. The defenseattorneys are still playing a limited role in the criminal procedure. And the lawyers are stillfacing lots of difficulties in the judicial practice.In this paper, the author firstly summarized the difficulties that lawyers are encounteringas three specific parts: a low rate of defense service; the poor effective on the substantivedefense; the very hard beginning on the procedural defense. The three problems mentionedabove share the similar reasons for the formation. The three problems restrict and influenceeach other much. Any inappropriate solving of one of the problems will be a threat to thewhole defense system and the judicial justice’s value will be damaged. Therefore, in thesecond part of this paper, the author emphatically analyzes the reasons that cause the difficultsituation above from both the system level and the level of conception and practice. In thesystem level, the author firstly analyzes the negative influence of fuzzy legislation and theincomplete logical structure of the legal rules on the protection of the lawyers’ defense right.Secondly, the equal relationship between the lawsuit patterns has not been formed in ourcountry at present, and the gap between the two parties has not mended yet. Moreover, the abuse of the article306of the Criminal law in the practice makes the lawyers face a higherrisk during their defense activities. And this is also the reason for the low defense rate andwhy a lawyer does not want to take over a criminal case. In the conception level, the authormainly discusses the potential disadvantages to the lawyers’ defense activities in practicebecause of losing the concept of the presumption of innocence and the procedure justice. Inthe practice level, the author mainly discusses the negative influence from the resist of theprosecutorial authority, the lacks of punishment to the prosecutorial authority’s unlawful actand the unscientific examination system carried inside the public security organs and theprocuratorial departments. In the last part of this paper, the author comes up withcountermeasures aimed at the reasons mentioned in the second part. And the author hopesthese countermeasures will help the lawyers get out of the difficulties in practice.