In China, the defendant's right to defense can be exercised from the beginning of investigation to the whole process of litigation, and no organ, group or individual can deprive it under any excuse. In the court trial stage, the defendant not only has the right to defend himself, apply for evidence, make a final statement, appeal or appeal to the referee, but also can entrust a defender to defend himself. In a case where a public prosecutor appears in court, the people's court may appoint a defender for the defendant who has not entrusted a defender. If the defendant is a deaf-mute or a minor and has not entrusted a defender, the people's court shall appoint a defender for him. If the defendant believes that the defender cannot safeguard his legitimate rights and interests, he may refuse the defender to continue his defense or entrust another defender.
Defenders are generally lawyers, people's organizations or citizens recommended by the defendant's unit or approved by the people's court, as well as close relatives and guardians of the defendant. A person deprived of political rights cannot act as a defender during the period of deprivation of political rights, unless he is a close relative or guardian of the defendant; The staff of people's courts, people's procuratorates and public security organs and people's jurors are generally not suitable as defenders unless they are close relatives or guardians of the defendant; Witnesses and expert witnesses in this case cannot simultaneously act as defenders of the defendant in this case. The defender can only defend the defendant at the trial stage. The responsibility of the defender is to put forward materials and opinions to prove the defendant's innocence, light crime or reduce or exempt his criminal responsibility according to facts and laws, and safeguard the defendant's legitimate rights and interests. Defense lawyers can consult the materials of this case, understand the case, and meet and correspond with the defendant in custody. Other defenders, with the permission of the people's court, may also know the case and meet and correspond with the defendant in custody. Defenders must be loyal to facts and laws, and shall not resort to deceit or cheat the people's court; We should also keep state secrets and personal privacy.
In western countries, the defendant has the right to defend at any stage of the proceedings; Have the right to choose a defender to help them defend themselves; Have the right to state their opinions; Have the right to remain silent or refuse to confess; Have the right to apply for evidence; Have the right to appeal or appeal against the judgment. Defenders are usually lawyers. Countries such as Britain and the United States stipulate that lawyers can provide defense after the defendant is arrested, and they can appear in court and ask witnesses during the preliminary hearing.
Defense refers to the litigation activities in which criminal suspects, defendants and their defenders put forward evidence and reasons in favor of the defendant according to facts and laws, indicating that the defendant is innocent, the crime is light or the punishment should be mitigated or exempted. The defense is based on the legal right of defense, which is a basic litigation function against the indictment. No charges, no defense. Only after the defendant is accused can the defendant and his defender defend. According to the constitution and laws of our country, the defendant has the right to be defended, and the people's court has the obligation to ensure that the defendant is defended. From the beginning of criminal proceedings, the defendant has the right to present materials and opinions that are beneficial to him, refute the charges against him and defend himself. Defendants can not only defend themselves, but also entrust lawyers and other defenders to defend themselves. If the defendant fails to appoint a defender in a case clearly stipulated by law, the people's court shall appoint a defender for him, and listen to and study the materials and opinions put forward by the defendant and his defender according to law.
2. According to the provisions of Articles 32 and 34 of China's Criminal Procedure Law, the types of defense in China mainly include:
defend oneself
Self-defense refers to the behavior of criminal suspects and defendants to refute, defend and excuse the charges. This kind of defense runs through the whole criminal procedure. Whether in the investigation stage or in the trial stage, criminal suspects and defendants can defend themselves.
Entrusted defense
1. According to Article 33 of the Criminal Procedure Law, the defendant in a private prosecution case has the right to entrust a defender at any time. The people's court shall, within 3 days from the date of accepting the case of private prosecution, inform the defendant that he has the right to entrust a defender.
2. The criminal suspect in a public prosecution case has the right to entrust a defender from the date when the case is transferred to the People's Procuratorate for examination and prosecution. (1) A criminal suspect may hire a lawyer to provide legal aid after being interrogated for the first time by the investigation organ or from the day when compulsory measures are taken. (2) The people's procuratorate shall, within 3 days from the date of receiving the case materials transferred for examination and prosecution, inform the criminal suspect that he has the right to entrust a defender. (3) The criminal suspect has the right to entrust a defender to a case directly accepted by the people's procuratorate from the date when the criminal investigation department of the people's procuratorate transfers the case to the examination and prosecution department.
3. According to Article 15 1 of the Criminal Procedure Law, if the defendant fails to appoint a defender before the opening of the court session 10, the people's court shall inform the defendant that he can appoint a defender.
Designated defense
China's appointed defense only applies to the trial stage, and the appointed defender can only be a lawyer. Designated defense includes:
1. If the defendant fails to entrust a defender due to financial difficulties or other reasons, the people's court may appoint a lawyer who undertakes the obligation of legal aid to provide defense. The Interpretation of the Supreme People's Court has made specific provisions on the circumstances in which defenders can be appointed, including: (1) those who meet the standards of financial difficulties set by the local government; (2) I really have no source of income, and my family's economic situation cannot be ascertained; (3) I really have no financial resources, and I am still unwilling to bear the defense expenses after repeated persuasion by my family; (4) In the same criminal case, other defendants have entrusted defenders; (5) Having foreign nationality; (6) Cases with significant social impact; (7) The people's court believes that the prosecution opinions and the obtained evidence materials may affect the correct conviction and sentencing. The appointed defender shall be a lawyer who undertakes the obligation of legal aid according to law.
2. If the defendant is blind, deaf, dumb or with limited capacity, or is a minor under the age of 18 at the time of hearing, and has not entrusted a defender, the people's court shall designate a lawyer who undertakes the obligation of legal aid to defend him.
3. If the defendant may be sentenced to death without entrusting a defender, the people's court shall appoint a lawyer who undertakes the obligation of legal aid to defend him.