Problems and Countermeasures of the criminal legal aid system

Zhejiang Xingyun lawyer Zhou Jianwei

Preface

Look from practice, criminal legal aid cause in ChinaBegan in theThe last century fifty's. ButAs a system, our country from1994To establish the legal aid system, legal aid and has carried out experimental work in Beijing, Shanghai, Wuhan.1996Years3Month17The eight National People's Congress on the revision of the five meeting of the "(Criminal Procedure Law of the people's Republic of China for the first time) decision" clearly stipulates the criminal legal aid system. The same year5Month15On the NPC Standing Committee adopted the "Lawyers Law of the PRC" focused on legal aid regulations.2003The State Council promulgated the "regulations, legal aid administration first Legal Aid Ordinance". Criminal legal aid system in China from scratch, after half a century, which is called "be not easily won"!

Present, China's criminal legal aid work

At present, China's criminal case rate is low. According toStatistics, China's criminal defense is only30%[1].This is extremely disproportionate and contemporary human rights and rule of law civilization requirements. Analysis of its causes, and the suspect or defendant legal sense, but also with economic difficulties can not afford a lawyer about. Criminal legal aid system in China is the main problem should specify the scope is too narrow, the public prosecutor, law related departments lack of attention, lack of funding, limited economic difficulties, the lawyer pretrial intervention vacancy, lack of effective criminal defense idea.

1The recipient scope is too narrow

According to the2005The Supreme People's court, the Supreme People's Procuratorate, the Ministry of public security, the Ministry of justice "Regulations" on the legal aid in criminal action second, criminal suspects, defendants in cases of public prosecution in criminal prosecution, the victim and his legal representatives or close relatives, as well as the case of the prosecutor and his legal representative, due to economic difficulties no lawyer or agent ad litem, can the legal aid agencies to the public security organ, the people's Procuratorate handling cases, the seat of the people's court to apply for legal aid. The suspect, the defendant as limited capacity, its legal representative may apply for legal aid. In the case of range is not wide, phasic recipient case is not long. However, from the actual recipient case, because the case handling organ that is not clear, the parties do not understand, the case handling organ to apply for not timely, cause economic difficulties to meet the standard, except should specify the case can get legal assistance, can get legal assistance for legal assistance or criminalThe defense is a minority.

2A serious shortage of funding

According to the current aid funds, legal aid lawyer can get subsidies basically is only the actual expenditure of transportation cost. Legal aid lawyers time costs nothing. The author believes that as a legal aid lawyer, whose labour should be respected. Pay the lawyer's time as the social necessary labor time, the average time cost society as their basic labor remuneration shall be safeguarded. If the labor remuneration of legal aid lawyers not to basic security, on the whole, the quality of criminal defense is in fact very difficult. To volunteer mentality in the criminal legal aid is minority after all. Now the main source of criminal legal aid lawyer is society lawyer, society lawyer does not account for the preparation, by the legal services market to make a living by himself. Lack of funds has seriously affected the enthusiasm of the criminal legal aid lawyers, inevitably affected the quality of criminal defense.

3The absence of effective defense idea

Criminal legal aid, many people think it is as a mere formality, defense lawyers in the trial "no objection! No objection".In the ordinary criminal defense, because it is a paid service, typically lawyers can more due diligence, the actual effect is better. Facts do notSo, whether it is legal aid, and whether the paid service, not necessarily related with the quality of the defense.

More important is, in concept, we lack effective defense concept. The author thinks, suspects and defendants, should get effective defense right. At the institutional level, in the criminal procedure in China, there is a lack of such a system, namely the criminal defense attorney for dereliction of duty, not in accordance with legal procedures to complete the defense, the defense is invalid, thereby affecting a constraint system of criminal litigation process.

Two, further understanding of the value of criminal legal aid

Ensure Party's right of defense fully is the basic principle of criminal proceedings. According to the provisions of China's "criminal procedural law" in article eleventh, the accused has the right to defence, the people's courts shall have the duty to guarantee the defendant to defence. Criminal legal aid system is an important judicial protection of human rights, has been in the constitutional documents in many countries as a principle.

1The realization of the value of the basic human rights

From the modern rule of law civilization, criminal legal aid system has become the world's most a system of most countries, and as a principle to safeguard civil rights in the Convention on the rights of "the world". Criminal legal aid has become a safeguard basic human rights and the pursuit of justice of the state responsibility of modern nations must take on its own citizens.[2]According to the United Nations "International Covenant on Civil and political rights article"14Article3Paragraph, right to be informed and to obtain the legal aid is the human rights safeguard measures a minimum of any criminal charges people should fully enjoy equal.[3] 1990The United Nations "basic principles on the role of lawyers" article3Regulation: governments shall ensure the provision to the poor and in the necessary time to other disadvantaged persons to provide legal services needed funds and other resources. Professional associations of lawyers shall cooperate to provide services, in the arrangements and facilities and other resources. The principle of the4Also stipulates that governments and professional associations of lawyers "should pay special attention to the poor and other disadvantaged situation of people to help, to enable them to assert their rights and where necessary call upon the assistance of lawyers." Now the establishment of legal aid system, protect the fundamental rights of citizens, has become a measure of national civilization and progress trend of internationalization.[4]

2 Realization of equal justice value

Equality is the basic principle of modern law, is an important target of the pursuit of value. Everyone is equal before the law, is not just a slogan, it is the content of social practice. When citizens because of inability to pay the litigation costs and legal fees, not equal to the judicial process, not equal to get professional legal services, legal and civil rights of the poor can not be achieved, not effective relief. The objective existence of civil legal equality of rights and safeguard the rights of citizens to achieve the desired economic inequality, therefore, duty subject of state as the guarantee of the realization of citizen's rights, we must establish the system of judicial protection of legal aid, starting from the protection of procedural rights and the right to equality of legal services, the realization of legal rights of citizens, protection of basic human rights.[5]China's "constitution" article33Stipulates: "citizens are equal before the law." This requirement, citizens enjoy equal status in the judicial front. To provide legal aid for criminal suspects or defendants economic difficulties, reflecting the state of equal protection of citizens, embodies all citizens are equal before the law constitutional requirements.

3The realization of procedure justice value

In the field of criminal justice, without a lawyer involved in the trial, at least in the procedure is considered to be a miscarriage of justice, the international community has become the general consensus. In the criminal prosecution, defense lawyers intervention is the key to balance the power between the two sides. Judicial practice shows, there are lawyers in criminal cases, the correct rate of the court will be significantly higher than no lawyers in court. Therefore, safeguard the suspect, the defendant can effectively help the lawyers in each stage of criminal procedure, has become one of the standard to measure the fairness of the procedure. As America scholars said: "justice -- whether it is socialism, capitalism or any other type of, is not only objective, but also a program: in order to make the impartiality of the procedure, all is accused of a crime must have his defense right."[6]

4To resolve social contradictions, realistic significance to maintain social stability

Legal aid is an important way to the defendant or the victims of correct understanding of legal, policy. The lack of legal help to make a defendant or a victim to the legal, policy, and even the party and government misunderstanding. These factors undoubtedly is an important factor affecting social stability. Therefore, to provide legal aid is not only a basic human rights in favor of the defendant to obtain the safeguard, but also conducive to the victim's legitimate rights and interests protected by law, to reduce the social unstable factors, is of great significance to promote social harmony.

Three, several suggestions to perfect the criminal legal aid system in China

Since the2003Since the promulgation and implementation of the State Council "Legal Aid Ordinance", in less than ten years, criminal legal aid in China has made the achievement of attract people's attention. But undeniable is, our current legal aid system still exist such as the legal aid funds shortage, low social status of lawyers, the public prosecutor, law case handling organ support is not enough, the low quality of the defense. In order to solve these problems, the author puts forward the following suggestions.

1. expand the scope of compulsory designated defending cases, strengthen the support dynamics, the lifting of the economic difficulties, and enhance the efficiency of criminal defense

In practice, enforce the specified cases are criminal legal aid can be guaranteed. Range by expanding the compulsory designated defending cases is an effective way to improve the efficiency of criminal defense. According to the provisions of China's "criminal law", which belongs to the court shall designate a lawyer's case scope limited to the blind, deaf, dumb, minors may be sentenced to death, five cases of type. I think that we should expand the scope of the case shall be designated defense by the amendment of the criminal procedure law. May be sentenced to felony suspect, defendant, should be included in the scope of the case for compulsory designated defending. In particular a standard, can be further discussed.

Secondly, you can specify the defense case, should strengthen the support dynamics, the case handling organ2005Years "on the legal aid in criminal action provisions" situation into assessment mechanism. By explicitly inform the right to legal aid, the timely delivery of application to improve the efficiency of criminal defense. At the same time, on right, in the protection of lawyers, the right of investigation, the public prosecutor, law departments should strengthen the support and cooperation.

Finally, according to the criminal law aid system of our country, economy is difficult to obtain legal aid conditions. In practice, the economic difficulties standards review has formal. From the theoretical perspective, to provideCriminal legal aid is the responsibility of the state, with a suspect or a defendant's economic difficulties should be no necessary connection. Whether a suspect or a defendant whether economic difficulties, have the right to legal aid for criminal. China's criminal procedure law also stipulates that, for the public prosecutor in court to support the public prosecution case, the defendant defender due to financial difficulties or other reasons, not authorized, you can specify the defender. Visible, criminal legal aid is to keep the balance between prosecution and defense, to realize the procedure justice, judicial justice. The only condition of economic difficulty is not to obtain the legal aid. On this point from the system level, it should be further clarified the lifting of the economic difficulties as criminal law aid conditions. Criminal procedure law amended in the future, should be clear of the Legal Aid Ordinance amendment or.

2To improve the quality of the construction of criminal legal aid, defense system

 A country's criminal justice depends on defense lawyer can truly fulfill the criminal responsibility. From the practice of the world, even though the defendant get help and counsel is recognized as a basic right of litigation, by including the international convention, guidelines, documents and national criminal legislation unanimously confirmed, however, whether to obtain the effective defense lawyer, is still another level problem. Especially in China's criminal defense practice.1970The Supreme Court in the Richardson years American(Richardson)One case, right to counsel explained to obtain efficient defense lawyer right, think to obtain effective lawyers to defend the constitutional spirit. If the lawyer's apparent lack of sufficiency, effectiveness,It belongs to the invalid defence,The article6Constitutional rights amendment of the defendant. Defendant convicted if that get effective defense lawyer rights have been violated,You can defend to invalid on the grounds of appeal,A request to a higher court to revoke the conviction.[7]The transformation of Chinese criminal procedure mode,Reform in recent years, making it more with the adversary color. In the litigation mode transformation,We should not only pay attention to the suspect, the defendant lawyer help, right of Defense,But to be effective to defending effect.[8]In view of this, the author thinks, should establish an effective defense system, establish a series of effective defense rules. Specific include: first, the suspect or the accused to have sufficient time and facilities selection to hire a lawyer, or obtain legal aid, not to be tapped, free full exchange case and opinions without inspection and complete secrecy. Second, establish the system of investigation and interrogation lawyer present. Third, lawyers should have independent right of investigation in each stage of criminal procedure. Fourth, establish the system of evidence display before the trial, all the evidence before the court prosecutor must produce to defense, marking the right of defense to ensure complete. Fifth, the establishment of invalid defence system. Establish a trial the defendant to appeal to the court of the second instance invalid plead the remand system as the grounds of appeal.

3With the financial security legal aid fund

The modern significance of criminal legal aid has from the initial to the poor relief charity moral behavior into the government behavior and national responsibility. Criminal legal aid is the national equal protection of citizens, to ensure that the necessary to realize the fairness and justice of the judicial order. The theoretical basis of the establishment of China's legal aid system is the "constitutional principle that all citizens are equal before the law.". China's "Legal Aid Ordinance" article3The clear provisions of the "legal aid is the responsibility of the government", the state is always legal aid obligations,The nature of legal aid is the country's duty and responsibility. Therefore, the state is the major attribute of criminal legal aid. The main responsibility of the criminal legal aid is the national. The government is implementing legal aid obligations, the financial security legal aid fund is behoove. Now, the legal aid fund has been included in the financial budget of local government. However, the local government finance to security as the system of national justice system of legal aid a ring has its limitations. In practice, the legal aid funds are still too. Part of the reason lies in the local government and the central government emphasis there are inconsistencies. To guarantee the legal aid funding sources, in addition to the local finance, central finance is not the absence of.

4Increase subsidies to aid lawyers, labor cost as the subsidy standard

If the criminal legal aid lawyer as a volunteer, also can provide effective defense lawyer of high quality. But, in reality, the volunteers is one of the few. At present, the criminal legal aid lawyer, is the main body of society lawyer, has its own objective needs in the society, there are the basic needs for survival. Criminal legal aid lawyer's labor should be basic respect. In order to make the criminal legal aid lawyers dedicated to provide for criminal legal aid and criminal defense, it is necessary to improve aid subsidy. In the provision of the criminal legal aid work, taking Hangzhou city of Zhejiang Province as an example, the detention center was far away in the suburbs. Now basically can be said to traffic subsidy cost. Criminal legal aid lawyer labor cost should be as a basis for subsidy standard.