Comparative Study Of The Compulsory Defense System

Compulsory defense system is related to safeguard of the right to defense and maintenance of the due process. Whether civil law countries or common law countries consider the perfection of compulsory defense system as an important subject in the process of criminal procedure reform, constantly optimize the rules of procedure and supporting regimes. The compulsory defense system of Germany, France, the United States and other developed countries have an early start and a rapid development. They have formed a complete institutional system. Chinese compulsory defense system has a late start, has been improving over two revisions of Criminal Procedure Law. Recently, the official published Opinions on Perfecting the Legal Aid System made a strategic deployment of the reform of Chinese compulsory defense system. However, compared with developed countries, Chinese compulsory defense system need to be improved in terms of he rules of procedure and supporting regimes. The subject of this paper is to analyze extraterritorial compulsory defense system, compare their similarities and differences. Then analyze Chinese compulsory defense system in the perspective of comparative law, and explore problems and causes. Finally, this paper comes up with strategies based on China practice and foreign experiences.Besides the introduction, the paper is divided into five parts, the main contents are as follows:The first part is an overview of extraterritorial compulsory defense system. This part use Germany, France, Japan and America as samples, to general extraterritorial compulsory defense system from history of the institution and implementation situation. Aforementioned representative countries carried out major reforms on compulsory defense system after Second World War, the scope and stage are expanding constantly, prompting the number of cases and recipients continued growth. This section also examines the recent developments of compulsory defense system in Europe,the US and Japan. Presently, the procedural rules of developed countries' compulsory defense have been quite perfect, but there also has room for reform of supporting system. The current main tasks of western countries are exploring how to use lower funding exchange for efficient compulsory defense, and improving defense quality by strengthen quality assessment, case management,etc.The second part compares procedural rules of extraterritorial compulsory defense system. This section compares representative countries' compulsory defense system, in the perspective of standards and stages of application, appointment of defender and the treatment of refuse to defend. This study find that representative countries' compulsory defense systems have several commonalities: the scope of application are expanding gradually, differential treatment detained person, particular care of vulnerable groups and so on. These commonalities are good reference samples for find and improve Chinese problems. There are some differences between representative countries' compulsory defense system: civil law countries take into account the sentencing standards and standards of due process, but the United States using only economy standards; the extent of compulsory in civil law countries is higher than in common law countries, etc.Part III compares supporting system of extraterritorial compulsory defense system. Funds guarantee and quality control are the core of supporting system. This section, in the perspective of funds guarantee and quality control, collected relevant information of European and American countries, and introduced the current situation of funding and advanced quality control measures of compulsory defense system. By contrast with China, foreign funding can reflect whether China has a funding shortage. The defense quality control measures of foreign countries provide a reference for the future reform of China.The fourth part analyzes the current situation and issues of China's compulsory defense system. This part sorts out Chinese compulsory defense legislation, and comments it from the perspective of comparative law. This study find that through continuous improvement, Chinese compulsory defense legislation line with international standards basically, it is an important achievement in Criminal Procedure Reform. However, after in-depth analysis based on judicial practice and foreign experiences, this study finds that Chinese compulsory defense still has several problems to be perfect: inadequate funding cause the scope is still too narrow, difficult to determine the applicable standard provides space for personnel to avoid compulsory defense, lack of a sound case management system leads to low defense quality, etc.Section V presents countermeasures of Chinese compulsory defense system. In response to these problems, Chinese compulsory defense should be perfect from both the procedural rules and supporting system. In terms of procedural rules, China should draw on comparative experience, give more attention to detained person, making they have chance to fight against the investigating authorities in the review of arrest procedures. To avoid the judiciary to circumvent the application of compulsory defense, legislation on applicable standards should be as clear, actionable. In terms of supporting regime, Invest more funds both to expand the scope of application, but also improve the quality of the defense to some extent, it is a priority of the reform. In the long term, China should also reference extraterritorial contract lawyer system, case quality control and assessment measures to improve the quality of defense.