| As China’s criminal litigation reform continues to advance,there is still controversy over how criminal defense lawyers can properly deal with the relationship between safeguarding the interests of clients and maintaining the unity of the legal order in the legal defense,and how to clarify the role of criminal defense lawyers in China accordingly.This paper attempts to propose a "normative" perspective to describe and analyze the role of criminal defense lawyers in China,and then explores the options to improve the specific practice mechanism of criminal defense lawyers.The first chapter introduces and analyzes the theoretical types and perspectives of the role of criminal defense lawyers,by citing three types of foreign criminal defense lawyers,namely,"judicial auxiliary(Germany)","out of office legal profession(Japan)" and "client representatives(USA)".By citing three representative classifications of the role of criminal defense lawyers,the theoretical types and perspectives of the role of criminal defense lawyers are extracted,namely,"as an independent agent to defend the interests of clients" and "as a collaborator to promote the criminal justice process".The second chapter analyzes the theoretical limitations of "clientelism" and "statism" in observing the role of criminal defense lawyers and then distills the conflicting relationships between publicness and technicality,judicial role and commercial role,and freelancer and clientelism that affect the judgment of the role of criminal defense lawyers.The third chapter proposes a "normative" perspective to overcome the above-mentioned conflicting relationships and transcend "clientelism" and "statism",and clarifies the normative meaning of criminal defense lawyers’ defense activities in accordance with the law.This chapter discusses the theoretical and practical significance of understanding the role of criminal defense lawyers from the perspective of "normativism",especially the feasibility of criminal defense lawyers to fit into the process of rule of law governance in our society through their own role.The fourth chapter analyses the current dilemmas in the role of criminal defense lawyers in China from the perspective of "normativism" theory,which includes both the ethical and practical dilemmas caused by litigation procedures,rights,and remedies system,and lawyer management mechanism.These dilemmas and their specific solutions will have a direct impact on the role of criminal defense lawyers in realistic states.The fifth chapter proposes a specific path to improve the role of criminal defense lawyers in China,through the analysis of the dilemma of the role of criminal defense from the perspective of normativism.The first is to improve the corresponding legal norms and refine the normative connotation of lawyers as socialist "rule of law workers" with Chinese characteristics to update the normative expression of the role of criminal defense lawyers.The second is to enhance the integrity of criminal defense lawyers and independent practice guarantee mechanisms and to promote the improvement of the management mechanism of criminal defense lawyers.The third is to assist criminal defense lawyers to better participate in litigation activities by guaranteeing the exercise of their right to defense and improving the corresponding litigation rights relief mechanism at the policy level. |
