Research On Effective Assistance Of Counsel In The View Of Substantiation Of Court Hearing

Criminal defense is the most important system which protects rights of the accused. Right to defense is the most important right of the accused and having the assistance of counsel is the main way of protecting right to defense. With continuous development of right to defense in Chinese criminal justice, the scholars’ interests transfer from having, using and protecting the right to defense to whether the accused is entitled to the right to defense substantively, which is the problem of effective assistance of counsel. YWhile in China, we don’t establish the system of effective assistance of counsel. Through comparing, we found that the theory of effective assistance of counsel is universal, which is not unique outcome of adversary system countries and the advanced rule of law states. In nowadays, there are two typical models of effective assistance of counsel around the world, one is American ineffective assistance of counsel model and the other is German triangular model.These two models have both advantages and disadvantages. We should absorb foreign countries’ experience to develop effective assistance of counsel. Only through identifying the essence and developing situation of effective assistance of counsel can we find the right way of developing our country’s effective assistance of counsel. At this moment, the reform of substantiation of court hearing provides a good opportunity.In this thesis, the author thinks that the reform of substantiation of court hearing offers a good chance to probe into the study of effective assistance of counsel. The thesis can be divided into four chapters.In chapter one, the author mainly discusses the theoretical basis of substantiation of court hearing and effective assistance of counsel. Through analyzing the hot points of substantiation of court hearing, explaining the concept of substantiation of court hearing and other related questions, the author points out the external environment of developing effective assistance of counsel and the essence of effective assistance of counsel. Using dialectical analysis method, the author puts forwards the relationship between effective assistance of counsel and substantiation of court hearing, which is supplementary to each other.In chapter two, by the method of comparison analysis, the author specially observes the model of effective assistance of counsel in America, which is the representative country of adversary criminal procedure models, and Germany, which is the representative country of inquisitorial criminal procedure models. By comparison, we can see the distinction of effective assistance of counsel in different law tradition, law culture and law enforcement. Through concluding other countries’experience and lessons of developing effective assistance of counsel, the author thinks that we have necessity and feasibility to introduce the idea of effective assistance of counsel to China, rather than American ineffective assistance of counsel system.In chapter three, through empirical analysis method, the author points out the main obstacles to prevent effective assistance of counsel’ development in China from four aspects, which is judicial idea, judge, lawyer and the accused.In chapter four, according to the problems put forward in the chapter three, the author offers effective measures respectively to promote our country’s effective assistance of counsel system. Meanwhile, the author hopes we could establish the quality control and evaluation system of lawyer defense.