How to overcome the tendency of legal aid people light punishment

Nantong Chongchuan District Legal Aid Center

 Zhu Guoqing

2010Years6Month10Day

Criminal legal aid cases growth stagnation, in the office of legal aid cases in the total amount of proportion dropped, the author of this care-laden. The author intends to start with the criminal priority principle of legal aid, a detailed analysis of criminal legal aid cases growth stagnation, in the office of legal aid cases in the total amount of proportion dropped in legal aid idea, legislation and law and other aspects of the problem and the reasons, try to put forward a preliminary solution.

    Criminal priority principle, legal aid

    In western countries, legal aid was originally developed by some private lawyers and religious groups and charities and other folk organization for the poor to provide free and moral behavior. But from the20Century40Since the 1990s, especially after the Second World War, fundamental changes have taken place in the nature of legal aid, namely the lawyer personal charity into the national obligation and responsibility of the government.. Legal aid is originally from the start, in some countries, the government has only the criminal legal aid, civil legal aid still rely on private law acts of charity.

1966Years12The International Covenant on Civil and political rights by the general assembly of the United Nations "month" (hereinafter referred to as "the Convention") article14Article3The provisions of paragraph, right to be informed and to obtain the legal aid is the human rights safeguard measures a minimum of any criminal charges by the people should enjoy the equal. The defendant has the right to attend all the "trial and defend myself or defend themselves through legal assistance of his own choosing; if he has no legal aid, to inform him to enjoy these rights in the interest of justice; there is a need for him to specify cases, legal aid, and in him there is no adequate solvency legal aid cases in his own, don't pay". "Convention" article26A more clearly defined, all people regardless of race, national or social origin, birth or other status, in front of the law, all are equal, and are entitled to equal protection of the law. According to the general theory of the western countries and the judicial practice, "the interests of justice" should be serious and complex as the case may be. Generally speaking, when the accused minor the defendant may be sentenced to a fine, do not have to provide free legal aid to them, but to provide legal aid to the defendant may be sentenced to imprisonment in case it is the lowest in western countries recognized legal aid criteria.1990Years12On the United Nations held at the Havana eighth session of the United Nations Crime Prevention and the treatment of offenders conference "basic principles on the role of lawyers" also have similar provisions. At present, our government has to1998Years10Month signed the "Convention", the NPC Standing Committee is research grant. But in the civil, the United Nations has not formulated the corresponding legal documents.[1]

 "The parties in criminal cases may lose their property, freedom, fame and even the most noble life, mainly involving property, reputation and other interests and the party in civil cases may be lost, according to Maslow's hierarchy of needs theory, criminal cases involving the interests of the parties is more basic and urgent, which also determines the criminal legal aid to priority of civil legal aid."

    "For China, from the level of legal requirements, should also be under the conditions of limited resources, the priority for criminal legal aid cases. Because, in our country, the criminal, administrative, civil procedural law in three, only China's "Criminal Procedure Law" provisions of the basic content of criminal legal aid system. Effect of "Criminal Procedure Law" than "lawyer law" and "Legal Aid Ordinance". Can say, China has established the priority of criminal legal aid in legislation."

    "In Chinese, emphasis has very important realistic meanings to the priority of criminal legal aid. Criminal legal aid for criminal suspects, defendants, easily mistaken for bad guys speak, that legal aid is not helping the poor, justice. In practice, there are a few local attention for civil legal aid, ignoring the criminal legal aid needs correct phenomenon. Set priority concept of criminal legal aid, does not mean that the civil legal aid is not important, civil legal aid is the realization of citizens both rich and poor, are equal before the law means that a constitutional principle, is the prevention of civil conflicts, the effective way to promote social harmony. We agree with the director of legal aid practitioners group Richard, UK.Mr. Miller's opinion, the civil and criminal legal aid has the distinction is clear in theory and the social function, are extremely important, the ideal approach is to separate the two, respectively, management and organization. But when there is a conflict between the two cases, should adhere to the death penalty criminal legal aid, especially the concept of priority."[2]

The two outstanding problems, implement the criminal legal aid priorities are

Criminal legal aid cases accounted for a substantial decline in the proportion of legal aid cases, the absolute number of criminal legal aid cases also showed a trend of decline, is the outstanding problems existing in implementing the criminal legal aid priority principle.2003Years, the limit of legal aid cases166433Member, criminal legal aid which67807Member, accounted for more than40.7%.[3]In the center2003Annual, handled all kinds of legal aid cases45Member, criminal legal aid cases18Member, accounted for more than40%. This is consistent with the average value of the. But to the2009Year, the center handled criminal legal aid cases66Member, accounted for only16%More than a year, pending a number of criminal legal aid cases rose1.5%. In fact, from the center2007Year of criminal legal aid cases Banjie number stagnant or declining trend[4]. It is similar with the legal aid center of Nantong city case,2005Year, the total number of the city's legal aid cases846A criminal case234Member, accounted for28%; to2009Year, the total number of the city's legal aid cases5235A criminal case187Member, accounted for only3.6%[5].2008The annual Guangzhou legal aidThe center of the case also proved thisCharacteristic,2008GuangzhouCity legal aid cases exceeded million pieces,The civil and administrative lawLawAidHelpThe case12240Member, a year-on-year growth of54.76%,Criminal legal aid cases2156Member, anThenReduce16.5%The total number of cases, accounted for15%[6]. This year1To5Month, the center is more obvious during the same period, the center for legal aid in criminal cases pending a number only7Thing, than last year the corresponding period is greatly reduced, if in accordance with this trend, in the center of criminal legal aid cases Banjie number will not exceed20Member, this year1To5The total number of cases in the center260Member, criminal legal aid cases of proportion dropped to3%. Criminal legal aid cases in the legal aid work is not able to reflect the principle of priority, but has been marginalized, to the point of not essential.

Three reasons, criminal legal aid cases accounted for and the absolute reduction in the number of

(a) in the concept of legal aid

1China's "constitution") provides that "respect for and protection of human rights." According to this provision, the good human rights should be respected and protected, "bad" human rights should be respected and guaranteed the same. However, a considerable part of the leading cadres and ordinary people view, those who have been investigated for criminal responsibility in the criminal suspects and defendants, which are equivalent to the bad, should not have the respect and protection of human rights. It is this concept of reason, many places appeared to ignore the importance of civil legal aid, criminal legal aid to correct the phenomenon. Legal aid people light punishment concept directly lead to short-term pragmatism prevails.

The State Council issued a document[7]Requirements for recourse labor remuneration, work-related injuries, traffic accident damage compensation legal aid cases for migrant workers, to stop censoring its economic status. The spirit of the document to implement the effect is quite good, in recent years, migrant workers legal aid rights case exposed primary growth, accounted for the legal aid cases80%The above, so that the criminal legal aid cases relative proportion dropped. Investigate its reason, migrant workers rights case if not handled properly, may lead to mass incidents or the occurrence of major cases, such as can be successful for migrant workers rights case, will be considered to do good, the good, and by the people, the media, the appraisal institutions admiration, and local government leaders are more inclined from the a pragmatic point of view, the limited financial funds for migrant workers rights case.

As China implements in the legal aid funds are investment system, some local government leaders including part of leading our judicial administration in thought, criminal defense in China itself is to glance over things hurriedly, posturing, little influence on lawyers to defend substantive rights of the suspect and defendant, criminal suspects and the accused. Most have been detained, will not have a significant impact on the local public security, therefore, do not want to be limited by costs on the criminal side, and more willing to use in case of migrant workers rights can bring performance.

The center has handled together only by the defendant relatives present legal aid application non designated criminal defense cases, a21Occupation school graduates, from the countryside to the city employment, soon to be the employer who feel shy, has been hungry for two days the young man to the poor mother to living expenses, with the body of only2Yuan in the stall to buy a fruit knife hiding in the body, then the implementation of the robbery of a woman, seize the RMB200Yuan, a fruit knife in the implementation of the robbery he did not hide in the body of the show, the police will patrol to him at the scene captured, and found in his possession the fruit knife, after identification, the knife is the control tool. According to the relevant regulations, carry control tools robbery, even if no show, will also be identified as the knife, sentenced him to three years in prison for six months. His mother may insist on appeal, and apply for legal aid to correspond to the court of the second instance of the Municipal Legal Aid center. In the centre of the review is that, a judgment is not inappropriate places, even in the case of the second instance, the entity is unlikely to be changed, which rejected the application for legal aid. The author thinks, this approach also reflects the tendency of pragmatism. In the criminal trial, can in the entity in just a few, for the vast majority of criminal defense cases, its significance is mainly reflected in the defendant's right of appeal, the second instance being the final instance, adducing evidences, appeal not infliction, procedural justice. The defendants and their relatives because there is not able to start the procedure of second instance, they might be mistaken for: he was not a fair trial, if able to start the procedure of second instance may be lenient sentence.

(two) in the application of law

1In this study, the author of the law, refers to the broad sense method. Law interpretation[1998]23"The Supreme People's Court on the implementation of No.<The criminal procedure law of the people's Republic of China>Interpretation of several issues "in the provisions of the" Criminal Procedure Law "article thirty-fourth of the content, in the judicial interpretation of article thirty-sixth, also increased the limited capacity for conduct does not entrust a defender, the people's court shall appoint one for him, situation specific while still in thirty-seventh, the people's court" for the other the reason can be specified as "defense:"(A)Standard economic difficulties prescribed by the local government(Two)I have no source of income,The family economic status cannot be ascertained(Three)I have no source of income,Their families after a lot of persuasion is not responsible for its defense attorneys' fees(Four)In a case of joint crime,The other defendants have entrusted a defender(Five)With foreign nationality(Six)There are significant social impact cases(Seven)The people's court that the prosecution and the transferred case evidence materials may influence the correct conviction and sentencing." This provision does not "the relevant provisions of the criminal procedure law" was lucky, in practice, law interpretation[1998]23Judicial interpretation in increased shall be designated and can be specified in the center had little or no. The people's court for can specify the understanding, equivalent to do not specify: on the one hand is not specified for can specify the circumstances, the higher court will not think program error and retrial, but also can be simplified in the handling procedures and handling documents, what is there against it; on the other hand, if the people's court for can specify the circumstances the specified, may face assistance center review the economic situation of the disorder, the State Council and a part of local "Legal Aid Ordinance" to specify conditions although regulation shall grant of legal aid, while at the same time it will be exempt from economic status review of the practice of clear limitations in the people's court shall five kinds of people in the specified ranges specified, face the people's court may be lost. Law interpretation[1998]23No. the provisions of article thirty-seventh in accordance with the provisions of the state, is still only console oneself with false hopes.

2The State Council, "Legal Aid Ordinance" and most of the Local Legal Aid Ordinance although criminal cases (including investigation, prosecution, trial of three stages, including the public prosecution and private prosecution, also include the incidental civil lawsuit) specific provisions can because of financial difficulties and apply for legal aid, but the center has only for a defendant relatives due to economic difficulties for legal aid in criminal cases. Since most without his lawyer criminal suspects and the accused are outsiders, provide the economic difficulties that are difficult to cross the barriers to have lost their personal freedom, these rights still exist in the criminal cases involved.

3The State Council, "Legal Aid Ordinance" provisions of article eleventh of the three cases due to financial difficulties may apply for legal aid, for the implementation of this provision,2005Years9Month28Day,The Supreme People's court, the Supreme People's Procuratorate, the Ministry of public security, the Ministry of justice on the legal aid in criminal action rules(Si Fatong[2005]78No.,2005Years12Month1Implementation) promulgated, the detailed provisions of theThe public security organs in the investigation stage, procuratorate in the prosecution phase, the people's court shall fulfill the informing the suspect, the accused has the right to apply for legal aid obligations at the trial stage. However, practice shows that, this duty has not been properly performed. From the Legal Aid Center since its establishment, has not been accused of designated defense refused legal aid lawyer to defend the case, if the public security organ, the procuratorate, the court strictly fulfill the obligation to inform, surely there will be a considerable part of the criminal suspect, the defendant to apply for legal aid, the practice shows that, without any criminal case get informed of these judicial later to apply for legal aid, legal aid center has not received any criminal parties to these organs of the application.

(three) in the aspect of legislation

In our country, there are several levels of legal aid legislation:1, the law: "Criminal Procedure Law", "lawyer law";2And administrative regulations, the State Council "Legal Aid Ordinance";3, judicial interpretation;4, local laws and regulations: provinces, municipalities, autonomous regions, special economic zone, city and province (autonomous region) the location of the people's Government of provincial capital city, approved by the State Council of the great city of "Legal Aid Ordinance" or "implementation measures".

From China's "criminal law", and not the implementation of China's criminal defense attorney monopoly system. The so-called criminal defense lawyer monopoly system refers to all the criminal suspects, defendants have the right to counsel, when the crime suspect, defendant fails to hire a lawyer, the right to obtain the legal aid lawyer, non lawyers shall not be a criminal defense system as the defender of the. In China, people have statistics, in the trial stage,50%To80%The defendant without a lawyer involved in defence during the trial. "The three designated defending the law of criminal procedure" in the situation in practice to implement better, the center has encountered a case, the defendant in the crime under the age of eighteen, but in the court of first instance has over eighteen years of age, not for the defendant designated defense, appeal to the program on the grounds of unlawful remand after the retrial, the trial judge to find out the law interpretation[1998]23Specific provisions on judicial interpretation and trial judge communication, then don't occur in such circumstances. Visible, the people's court to be appointed defense approach is considerable attention and care.

Law interpretation[1998]23The judicial explanation No. thirty-seventh, because only the judicial interpretation, the effect is far from the "Criminal Procedure Law" provisions, and is not specified, should be specified.

2003The State Council "Legal Aid Ordinance" opened a not very good head, no absorption release[1998]23The judicial explanation No. thirty-seventh results, as listing rules, still follow the "Criminal Procedure Law" "other reasons" general provisions, and only five people should be clearly specified circumstances can exempt from economic status review. The author thinks that there are two reasons: the first reason is that, according to the judicial interpretation, the people's court may use too many can specify the situation, and the existing aid centre may be unbearable, so do not make specific provisions, provide the choice for a certain assistance center; another reason is lawmakers were only "Criminal Procedure Law" in the formulation of regulations, and do not understand the law interpretation[1998]23The judicial interpretation of the provisions of the specific content, the increase according to the judicial interpretation of the "limited capacity of the defendant" shall be prescribed the designated defense in Guangdong Province, "Legal Aid Ordinance", there is no corresponding to the State Council and other local "Legal Aid Ordinance" approach that possibility, for second reasons a greater number of.2003The State Council "Legal Aid Ordinance"Article twelfthThe provisions of the two paragraphThe comparison between the provisions of the first paragraph of this article "Prosecutor and the defendant in the case, due to financial difficulties or other reasons not to entrust defenders, the people's court specified for the defence of the accused, the legal aid institutions shall provide legal aid." Second but the provisions"If the defendant is blind, deaf, mute or a minor but not entrust a defender, or the defendant may be sentenced to death and counsel did not entrust a people's court appointed defense, as the defendant, the legal aid institutions shall provide legal aid, without the need of the economic status of the defendant's review."Apparently, according to the provisions of the first paragraph shall provide legal aid, but also can not be exempt from economic status review, thus, the basis for the first operation is very difficult.

In the local "Legal Aid Ordinance" legislation, Guangdong Province and Changchun City, all but a few local regulations absorbed the law interpretation[1998]23Judicial interpretation of article thirty-seventh achievements made the corresponding provisions. While in Hunan province "Legal Aid Ordinance" only absorbing lists "in a case of joint crime,One other defendant has entrusted a defender ".

In addition to the reasons for and legislation, the legal aid, the concept of law, reduce the number of criminal legal aid cases, may also with the "law on the protection of minors", "law on the protection of disabled persons" and the relevant judicial interpretations of the effective implementation of the original, not in proportion to the specified case people and deaf people party may be light, may in the investigation and prosecution stage is to digest the sudden increase in cases, in order to make more time disposal and malignant cases.

Four, implement the strategies of criminal legal aid priority principle

1In concept. Strengthening legal aid and public education, be in the right and self-confident to publicize the criminal legal aid priority principle, let the leading cadres and especially in the administration of justice of leading cadres to understand the criminal legal aid priority principle origin and content, and from the concept of abandon short-term pragmatism tendency.

2In the aspect of legislation. For the Standing Committee of National People's Congress early consideration, the ratification of the United Nations "" International Convention on Civil and political rights, combined with the provisions of the Convention on China's "criminal law", "Legal Aid Ordinance", "lawyer law" changed accordingly, and the lawyer to absorb the monopoly system.

3In the application of the law. In the aspect of legislation has not made breakthrough progress, we can make an effort in the application of the law, will present the interpretation put it away unheeded[1998]23The judicial explanation No. thirty-seventh, "Legal Aid Ordinance" of eleventh due to financial difficulties for criminal legal aid clause,Si Fatong[2005]78No.Legal aid judicial interpretation to determine the judicial authority duty clauseEtc.Implement. The author assumes, through the provincial legal aid fund way, solve the problem of funding, the lawyer resources rich individual level assistance center pilot. The specific scheme:

(1) please local politics and Law Committee to take the lead, the district level assistance center and the people's courts at the same level reached a consensus, which belong to the interpretation[1998]23Judicial interpretation of thirty-seventh cases, the people's court shall be designated to provide Defense Assistance Center, accept the specified assistance center no longer economic status review; the people's court to reduce pressure, because you can specify circumstances material replication costs increased by aid center to assume, for you can specify the circumstances, the people's court may take the phone, e-mail is convenient and flexible way of notice, the undertaking lawyer pleaded not guilty, and if the indictment charges are not consistent, shall inform the people's court to ordinary procedure etc..

(2) please local politics and Law Committee to take the lead, the District Public Security Bureau (if possible, can be set to the local police station), District People's Procuratorate, the District People's court, and the location of the establishment of liaison system, telephone system and District Legal Aid Center, to implementSi Fatong[2005]78No.Legal aid judicial interpretation to determine the judicial authority duty, and local politics and Law Committee led the establishment of the panel regularly inspect the implementation, in order to make due to economic difficulties to apply for legal aid has become the norm.

(3The District Legal Aid Center) set up a legal aid lawyer on duty system, a special law for criminal legal aid service, received the assignment can be out at any time, the number of lawyers as the actual volume of business in the process of adjusting the trial. At the same time, simplify legal aid application, examination and approval procedures, the design of a special legal aid application form, in the judiciary, as long as the applicant in the application on the signature is deemed to apply, aid center review of economic situation, by fax, e-mail convenient way through the applicant is located the legal aid institutions, to help the applicant to provide the proof of economic conditions, the economic status cannot be ascertained or the applicant to the legal aid institution fails to reply, as consistent with economic difficulties standards. The lawyers can through the hotline (the investigation organ may send personnel to monitor), telephone consultation on the applicant, can only work records without further dossier. For applicants to review prosecution case, the people's court for the applicant pleaded guilty to summary procedure cases, lawyers can also be without prior examination and interview, and can only record does not make another file.

Through test and trial for a period of time, by the aid of the legal aid foundation of personnel, funds, working system and working mechanism for review, summary, as the case in a certain range of.

Legal aid in criminal and civil, administrative legal aid is an important foundation of legal aid work, the lack of legal aid for criminal, as a perfect person is missing a leg, is incomplete. As the legal aid, we can not be confused by the reality, we must have the courage to look to the future, the legal aid future will be priority principle in the criminal legal aid, get a space for one person to criminal legal aid. In recent years, migrant workers legal aid case of continuous explosive growth momentum is slowing down, the next will be explosive growth point of criminal legal aid cases. As the legal aid, we must not only be able to rights exhaustion about poor "love is good", but also the courage to love repeatedly petition "residents", more courage to love has been detained the loss of personal freedom and dignity. "".2010Years5Month30Day,Two high school departmentJointly issued the "about the death penalty cases reviewed to determine the rules of evidence problems" and "about some problems of exclusion of illegal evidence in handling criminal cases, provisions", judicial organs will take positive attitude hitherto unknown is strictly prohibited torture to extract confessions, exclusion of the illegal evidence, criminal defense and criminal legal aid work space will be further expanded.Time will not wait for me. Seize every minute. As the legal aid, you ready?