The criminal defense Disorder Cause Analysis and Evaluation
|School||Southwest University of Political Science|
|Course||Code of Criminal Procedure|
|Keywords||Criminal Defense Defense lawyers University Press Chinese lawyers Defense system Departmental selfishness Criminal suit Defendant Cultural concepts Procuratorial organs|
The criminal defense system witnesses a gradual decline, whicharouses the wide concern of Chinese law scholars. But just from theessays I collected, I find a trend that most scholars are prone to take itfor granted that the obstacles to the criminal defense system mainlycaused by the following two reasons: firstly, the defects of thelegislation; and secondly, the intentionally practiced action that iscarried out by police and prosecutors so as to impetus the defenselawyers from exercising their rights. Although there are also prominentscholars who have tried to analyze, the causes of the obstacles to thedefense system from the viewpoint of culture and idea, they alwaysexplained and researched in a simple and abstract way.This author has pondered this question for a long time: if thelegislators have added more articles to improve the rights of defenselawyer, shall the obstacles be thoroughly eradicated? Shall the problemthat the rights of defense lawyers are always be intentionally halted bypolice and prosecutors will be thoroughly solved? Compared with theformer edition of the criminal procedure, the current one has made somegreat progress in the aspect of rights expansion, while in practice, thesituation makes no change at all, if any, that may be some retrogression.This illustration just shows that: besides the efforts that should be madeto perfect the legislation, we also should try to pay more attention to theresearch of culture and idea, which are the living environment of thesystem.This dissertation is made up of five parts:The first chapter gives us a general description of the history ofcriminal defense system, both home and abroad, and raises the questionthat this essay tries to deal with.The second chapter observes and studies the status quo of thepractice of china’s criminal defense, and points out the facts that theratio of hiring a defense lawyer is comparatively low, and the defensesystem has witness a gradual decline. This chapter also manages to findout the very obstacles that impetus the development of china’s defense system by using the method of empiricism. Through the analysis of thethree chosen cases, the author concludes that although the imperfectnessof the legislation plays an important role in the causes of the obstacles,the commonly existed phenomenon of "not act in accordance with law"is the deep-rooted cause, and the fundamental cause is that the currentlaw-run atmosphere of China saw many flaws, especially theimperfectness of the practicing environment of defense lawyers.The third chapter discusses mainly about the observation of thecauses of obstacles from the perspective of culture. China’s deep-rootedand historically formed "obligation oriented" idea undermined the livingbases of the defense system. China’s traditional "order oriented" idearuined the developing condition of the defense system. China’straditional culture of pursuing "no suit" seriously deteriorated the outeratmosphere of the defense system.The forth chapter tries to find the causes that result in the obstaclesto china’s defense system from the angle of idea. The idea that thelegislator held seriously ruined the legislation of criminal procedure,which confined the right scope of defense lawyer and enlarged thepower of police, prosecutors and so forth. The idea held by the police,prosecutors and judges made them act to hamper the exercise of therights of defense lawyers. The idea that cherished by the commonpeople and the defense lawyers themselves severely undermined thebasis of their development.The last chapter primarily focuses on the raising of suggestion thatis mean to consummate the building of china’s criminal defense systemfrom the angle of methodology and concrete measures. As for themethodology, we should keep to systematic theory, while we also shouldpromote some concrete measures to perfect this system. Firstly, weshould cultivate our rights-cherishing culture as soon as possible.Secondly, we should enforce the promulgating of some new theories.Thirdly, we should build the coherent unity of the legal profession,Fourthly, we should perfect the outer practicing environment of thecriminal defense.