我國(guó)刑事辯護(hù)存在的問(wèn)題及其對(duì)策

1、Existing Problems and Strategy ofthe Criminal Defence in ChinaXu LanTingDefense is a series of acti ons that crim inal suspect, defe ndant and their defe nd attor ney refute and defe nd accordi ng to the accusati on by the accusa nt. The right to be defended is a most basic and important right entit

2、led to the defendant in the criminal proceed in gs. The crim inal defe nd system, as an importa nt aspecgt in the legal systems of the crim inal proceedi ngs of the moder n rule-by-law coun tries, reflects the status of a country s democracy and human rights and is established by the legislation of

3、every country. Moreover, the basic principle in the actions penal that the accused is entitled to be defended has been ascertained in the International Covenant on Civil and Political Rights established by the UN and elaborated in the Basic Prin ciples on the Role of Lawyers passed at the 8th Sessio

4、n of the UN s Meeting on Preventing Crime and Treatment on CriminalsDirector of Criminal Committee, Beijing Lawyer Association. The 1984/50 Resolution of the UN Economic Council The Decision passed at the Session of the UNs Meeting on Preventing Crime and Treatment on Criminals., thereupon an integr

5、ated minimum international sta ndards on crim inal defe nd systems comes into being.In our n ati on, as a basic system in crim inal proceed in gs, crim inal defe nd system has been established by the Constitution, the Criminal Procedures Law and the Act on Lawyer, especially the new Criminal Procedu

6、res Law enforced in 1997 marks a further progress in the legislation of criminal defending system. However, until now, the status of our nation s criminal defend is not satisfactory which can be indicated bya most simple in dex that the defe nding rate that defe nse lawyers appear i n court is very

7、low. Even to say, the environment of criminal defense is deteriorated rather than improved. Why in the process of establishing a rule-by-law nation, the development of criminal defense does not accord with the modernization of legal system? What s the problem of our nation s defense system? As for t

8、hese problems, what shall we do?This thesis pla nes to probe into the above problems.一、Problems Existed in Criminal Defense in ChinaThe low defending rate of criminal cases and that lawyers are reluctant toundertake criminal case show that the issues existing in our nation s criminal defeis complica

9、ted and multi-aspect.（一）The problems analyzed at the judicial levelJudicature, as a series of actions during the enforcement of laws by relative execut ing orga ns, must be con ducted in accorda nee with the stipulati ons of relat ing laws or acts. However, i n the aspect, a nu mber of orga ns that

10、han dle cases act by the in dicati ons of their in ternal departme nts and the judiciary expla nati ons by every orga n contradict laws or acts, which causes the relating stipulations null and the exertion of the legitimate rights to be defended by lawyers difficult.1、The right of the lawyers to mee

11、t with their clie nts is like to be nomin al. The article 96 of the Criminal Procedures, Regulations on Issues during the process of en forceme nt of Crimi nal Procedures Law made by the six min istries and commissi ons and the relative explanations on laws or acts by the Supreme Court, the Supreme

12、Procuratorate and the Public Security Ministry all stipulate that lawyers are entitled to meet with the criminal suspect and the defendant in custody. Except the case involving State secrets, the lawyer need not obtain the approval of the investigation organ and the relative organ must arrange the m

13、eeting in 48 hours since the application by the lawyer for meeting. Differently, the relative organ must arrange the meet ing in 5 days in the special case such as that involving gan gdom. But in fact, the in vestigati on orga n usually does not arrange the meeti ng with excuses that the case involv

14、ing state secrets, the case is special or the meet ing n eed to be approved by the compete nt orga n, or arran gesthe meeti ng but un reas on ably limits lawyer right to meet with the criminal suspect, such as strictly limiting the time or times of meeting, sends its people to be prese nt at the mee

15、t ing, or record or kin escope the meeti ng etc.2、The investigation and collection of evidenee by defense lawyer is confronted with difficulties. The article 37 of the Criminal Procedures Law stipulates the inv estigati on and collect ion of evide nce by defe nse lawyer, that is, Defense lawyers who

16、 collect information pertaining to the current case from the witnesses have to get the consent of the witnesses, and if they plan to collect evidences from the victim, they have to get the consent of the compete nt orga n or the victim. But in practice, it is ordinary that wit nesses don t corporate

17、 in the in vestigati on or collect ion, and thecompete nt orga n does not approve the collect ion of evide nces by the lawyers from the victim or the victim does not consent with the collect ion. When facing these problems, defe nselawyers will be at the end of their wits.“ Such strict limitatio n o

18、nlawyers right of investigation essentially makes the right to be defended impracticable and collect ing fact and evide nce becomes impossible.The Research on Problem and Countermeasures on the Implementation of Criminal Procedures Law, Fan ChongYi, China People Public Security University Publicatio

19、n, 2001, P106”3、The defense lawyer is facing difficulties in consulting judicial documents. Thearticle 36 of the Criminal ProceduresLaw stipulates that the defense lawyers may, from the date on which the Peoples Procuratorate begins to examine a case for prosecution, consult, extract and duplicate t

20、he judicial documents pertaining to the current case and the technical verification material, and“ Defense lawyers may, frothe date on which the Peoples Court accepts a case, consult, extract and duplicate the material of the facts of the crime accused in the current case. ”But in judicature practic

21、e, the rights necessary in the lawyers practice is strictly limited. In the periodof examination of a case for prosecution, People Psrocuratoratesof many regions require lawyers get the approval from the competent organ if they want to consult the judicial documents, or dont permit lawyers to consul

22、t with the excuse that the case isinvolved in State secrets, or refuse the consultation by reason that the duplicating machine doesnwt ork. Even if the lawyer gets the permission to consult the documents, only those published and inessential judicial documents and technical verification material are

23、 available. While after the People Csourt accepts the case, although defense lawyers are entitled to consult, extract and duplicate the material of the facts of the crime accused in the current case, yet since the duplicates of major evidence attached to the case that the Peoples Procuratorate trans

24、fers to the PeopleCourt is not all the evidences, therefore, defense lawyers can not get all of the judicial documents including those favorable to the defendant.4、The defense lawyers -sesceulfrity is challenged. Both the article 306 of the Criminal Law and the Criminal Procedures Law stipulate that

25、 lawyers shall not intentionally give false evidence. This prescription is reasonable, but leaving defense lawyers at stake and the article 306 makes it possible that defense lawyers facing with danger at any moment when defending for the criminal suspect or the defendant. After the enforcement of t

26、hese two laws, defense lawyers are often falsely arrested or taken into custody by the procuratorate organs. That defense lawyers securityfacing challenge impairs lawyers public image and weaken lawyers enthusiasm toundertake criminal cases.This causespanic in defense lawyers and some defense lawyer

27、s even declare not to defend criminal cases.5、Besides, there are many problems such as applying for a guarantor pending trial (most of the criminal suspect or the defendant are in custody and defense lawyers applications for guarantor pending trial are seldom approved), or defense lawyers defending

28、opinions are seldom accepted ( although defense lawyers provide an excellent defense of not-guilty, yet the verdicts of not-guilty is few and the rate of not-guilty defense is very low etc.(二) The problems analyzed at the legislative levelCompared with the countries with advanced legal system, the d

29、evelopment of our nation nsomocracy modernization needs a long time. Although our nation s criminal defense system has achieved a great progress in the new Criminal Procedures Law of 1997, yet compared with the minimum international standards established in the international covenants signed by our

30、nation such as the International Covenant on Civil and Political Rights of the UN and the Basic Principles on the Role of Lawyers, the new Criminal Procedures Law of 1997 needs to be considered and improved.1、The status of defense lawyers in the litigation during the period of investigation. The art

31、icle 96 of the Criminal Procedures Law stipulates that after the criminal suspect is interrogated by an investigation organ for the first time or from the day on which compulsory measures are adopted against him, he may appoint a lawyer to provide him with legal advice and to file petitions and comp

32、laints on his behalf. During the period of investigation, the criminal suspect may appoint defense lawyers to provide legal advice in advance. But there is no explicit prescription on the status of the defense lawyers in the litigation during the period of investigation. This blur in legislation cau

33、ses the right of defense lawyers to provide legal advice in advance can not be implemented or be safeguarded.2、Compared with the previours legislation, the present legislation on the right of defense lawyers to consult the judicial documents even retrogresses. In order to reduce verdicts before the

34、court session and to introduce into the principle of one bill of prosecution, the new Criminal ProceduresLaw of 1997 stipulates that when the procuratorate organ transfers the case file to the People Csourt, it need only to provide the bill of prosecution and the attached list of evidence and a list

35、 of witnesses as well as duplicates or photos of major evidence and not all of the case file need to be transferred. This stipulation reduces the opportunity of the judge to get evidence, and at the same time, limits defense lawyers right to consult the judicial documents during the period of trial

36、which makes the defense lawyers more strictly deprived and limited to consult the case file than the stipulation of the Criminal ProceduresLaw before amended.3、The limitation of legislation on the investigation and evidence collection by defense lawyers is excessive. As for the investigation and evi

37、dence collection by defense lawyers, the article 37 of the Criminal Procedures Law stipulates that Defense lawyers may, with the consent of the witnesses or other units and individuals concerned, collect information pertaining to the current case from them. With permission of the Peoples Procuratora

38、te or the Peoples Court and with the consent of the victim, his near relatives or the witnesses provided by the victim, defense lawyers may collect information pertaining to the current case from them. The article 44 of the Judiciary Explanations by the Supreme Court stipulates that when defense law

39、yers collect information pertaining to the current case from the witnesses or other units and individuals, if they can not get the consent from them and apply to the People s Court for collecting or obtaining the material, and if the People thinks it is necessary,the People Csourt should accept the

40、application. From the above stipulations, we can see that although the present law stipulates the defense lawyers have the right to investigate and collect evidence, yet they have to get the consent from the person or the unit investigated and get the permission from the People Psrocuratorate. There

41、fore, defense lawyers right to collect and investigate evidence is substantially deprived. And how can defense lawyers collect the favorable evidence for the defendant by this limited right ?4、The legislation does not prescribe the exemption of defense lawyers when they undertake the case. The exemp

42、tion of defense lawyers when they undertake the case means that defense lawyers action and speeches during the period of litigation will not be prosecuted according to stipulations of laws. This is a basic right explicitly regulated in the Basic Principles on the Role of Lawyers, but there is no suc

43、h prescription in our nations laws. And on the other hand, the article 306 of the presentCriminal Law stipulates the crime that the defender, law agent destroys, falsifies evidence, threaten or lure witnesses to contravene facts, change their testimony or make false testimony. The principal part of

44、this accusation is defender and law agent shouldered by lawyers. Undeniably, this is distinct discrimination in legislation.（三）The problems analyzed at the rule-of-law process levelCriminal defense, same with the systems of whole criminal procedures, is a litigation system for protecting human right

45、s of the defendant. It is deeply rooted in the Western political culture and the construction of legal system. Even if our nation treats the establishment of a rule-by-law country as the aim of the development of the society during the process of constructing a modernized socialism, but it is undeni

46、able that nomocracy is totally against our nation trsaditional culture. As the criminal litigation system is concerned, due to the cultural tradition of the departmentalism ofnation existing in our nationhistory for a long period and the influence by the ideology of ruling by proletariate after the

47、erection of our country, the valuation of criminal litigation lays emphasis on punishing crime. Therefore, the ideology that criminal litigation is to protect the human rights of the criminal suspect and the defendant is difficult to be accepted by the society in a short term. Thus, it is unavoidabl

48、y that criminal defense is treated as a system to protect the bad man who commits a crime and is resisted unconsciously in the judicial practice.During the process of no mocracy of our n ati on, since our partial un dersta nding on crim inal defe nse and eve n the whole crim in al litigati on system

49、, the orie ntatio n of the whole legislation is not accurate which, as the legislation is concerned, causes the unsatisfactory result of the design of criminal defense system no matter in the particulars of en forceme nt or in the orie ntati on of the whole system.In short, the problems now existing

50、 in our nation criminal defense is complicate and multi-aspects. Execution of law in judicature is not strictly compliance with the relative stipulati ons which cause the orig inal in ten ti on of legislatio n not to be practical. And in legislati on, it shows that the system itself is not con summa

51、te. But in the author s opinion, the most importamtd deepestproblem is how to understand and treat the value of the system to protect huma n right in crim inal defe nse and how to en force the crim inal defe nse system in the reform of whole judicial system.二、The countermeasures for solving the prob

52、lems in the crim inal defe nseWe have analyzed simply the existing problems in our nation s criminal defensefrom several aspects and poin ted out the crux that causes these problems is the un dersta nding and orie ntati on of the crim inal defe nse system, the crim inal procedures system and even th

53、e reform of the whole judicial system. The following is some advice on soluti on of these problems by cleari ng this crux.The crim inal defe nse system is the basic system in the modern crim in al litigati on.The evoluti on history of crim in al litigati on can be treated as the history of expa ndin

54、g and stre ngthe ning crim inal defe nse system. The modern crim in al litigati on is also be deemed as an act to protect human rights (including protecting the rights of the criminal suspect, the defendant and the victim. But the most primary purpose of the modern crim in al litigati on is to prote

55、ct the huma n rights of the defe ndant and limit the power of prosecution by the politic body to violate against the defendant human rights.). And criminal defense system is the very proof to protect the defendant s huma n rights duri ng crim in al litigati on. Only by tak ing this as the goal of th

56、e crim inal defense and even the whole criminal litigation system, and changing idea that crim inal defe nse is to protect the bad man and the whole crim in al litigatio n system is4 Creation and Development: the Compendium on Evolution of Criminal Defense System, Xie Youping, LegalScience, the firs

57、t periodical of 2002a tool for the country to hit crimes, can we build up the criminal litigation system on this solid base that everything is ruled by law and experience the fascinate eloquence in the criminal defense.Of course, the research and solution to the problems eventually shall be put into

58、 practice rather not just a theory. Knowing the crux of our nation crsiminal defense system does not mean that all the problems in criminal defense are readily solved. When we change the conception, we need to find the practical countermeasures and actions. With a view to the transition of criminal

59、defense and even the whole criminal litigation system in our nation-by-law procsersusleandthe complication of this problem in the social life, we have to reform the criminal defense system by stages.（一）The provisions for the criminal defense in Chinese present legislationshall be adequately put into judicial practice.No matter how much advice or opinions on criminal defense, that functioning in the judicial p