Legal aid system is a judicial relief system in which the state provides legal aid to citizens who are unable to pay or pay legal service fees in full due to economic difficulties, so as to safeguard their rights and interests endowed by law. The legal aid system originated from the moral behavior of lawyers providing free legal services to poor clients, and then gradually evolved into an indispensable legal system in a modern country ruled by law, which is the embodiment of legal civilization and social progress. This system has existed in the world for one hundred years, and now it has become a national mechanism for protecting and promoting human rights in more than 40 countries. ?
The scope of legal aid involves criminal, civil, administrative litigation and non-litigation affairs. This paper only discusses and analyzes the present situation and perfection of the legal aid system for criminal cases. ?
1. Establishment and implementation of criminal legal aid system in China?
China's criminal legal aid system is established and implemented as one of the contents of legal aid. In China, with the transformation of economic system and the adjustment of interest pattern, due to the differences of subjective and objective conditions, there has been a certain degree of difference between the rich and the poor, and some citizens are unable to safeguard their legitimate rights and interests because of economic difficulties. In order to ensure that the poor and vulnerable groups in society can enjoy the same legal aid rights as ordinary citizens, guarantee judicial justice and judicial human rights, and realize the constitutional principle of "everyone is equal before the law", the Ministry of Justice formally proposed to explore the establishment and implementation of China's legal aid system at the beginning of 1994, and took the lead in launching legal aid pilot projects in some large and medium-sized cities. With the promulgation of the Criminal Procedure Law and the Lawyers Law, the legal aid system has been established in the legal system of China. As a result, the establishment and implementation of the legal aid system in China has been fully launched. After several years of practical exploration, legal aid has made great progress. Local laws and regulations on legal aid have been promulgated in various places, and at present, 17 provinces (autonomous regions and municipalities directly under the Central Government) have promulgated laws and regulations on legal aid. With the promulgation of the Regulations on Legal Aid in the State Council on July 2 1 2003, the legal aid work in China has entered the stage of accelerated development from the establishment of the system. ?
The Regulations on Legal Aid establishes the basic framework of China's legal aid system, and clearly stipulates that citizens with financial difficulties have the right to receive free legal services, legal aid is the responsibility of the government, and the judicial administrative department is responsible for supervising and managing legal aid; Legal aid institutions are specifically responsible for organizing the implementation of legal aid work, and lawyers are the main providers of legal aid and should fulfill their legal aid obligations; Encourage social forces to participate in legal aid work; To stipulate the scope, standards and implementation procedures of legal aid, as well as the rights, obligations and legal responsibilities of all parties to legal aid. The promulgation of the Regulations provides an important legal basis for promoting and standardizing legal aid work. ?
The establishment and implementation of the legal aid system have achieved practical results. By the end of June 2003, there were 2,642 legal aid institutions in China, and 2 139 legal aid institutions at county and district levels, accounting for 83% of the number to be built. There are 8,899 full-time legal aid workers in China, nearly 50% of whom are qualified as lawyers. According to incomplete statistics, from 1997 to June 2003, legal aid institutions at all levels received more than 64 10000 legal consultations, handled about 800,000 legal aid cases, and nearly 970,000 people protected their legitimate rights and interests through legal aid. According to the statistical analysis of the national legal aid business in 2002, 78% of lawyers' defense opinions were adopted in whole or in part by the court, and even some cases were defended by lawyers and the defendants were acquitted by the court. This fully shows that the implementation of legal aid effectively protects citizens' basic human rights in the field of criminal justice and safeguards the judicial justice and legal dignity of socialist countries. ?
Second, what are the factors that restrict the development of China's criminal legal aid system?
Although China's criminal legal aid work has made remarkable achievements, due to its late start and a series of subjective and objective factors, this system has not been effectively implemented in judicial practice, which is manifested in the fact that lawyers are generally unwilling to undertake the obligation of legal aid defense, and courts often encounter mutual prevarication between law firms and lawyers when appointing defenders; In addition, there is still a lack of lawyers who are suitable for defending the blind and deaf. The defendant is blind and deaf, and it is even more difficult for the court to appoint a defender for him. The main factors are:
(1) The contradiction between supply and demand of criminal legal aid is prominent. With the deepening of legal aid work and the increasingly extensive publicity, the social demand for legal aid is increasing. There are more and more criminal defense cases designated by the court, and the matters that citizens ask for legal aid are gradually overwhelmed. It is estimated that China needs more than 700,000 legal aid cases every year, but less than a quarter of them actually receive assistance. ?
(2) The funds for legal aid are seriously insufficient. At present, the state's annual allocation for legal aid funds is less than 6 cents per person per year, far below the average level of developing countries. The shortage of funds seriously restricts the development of legal aid funds, especially in some economically underdeveloped areas, it is very difficult to set up legal aid institutions and raise legal aid funds. ?
(3) The Regulations on Legal Aid promulgated by the State Council in July 2003 has guided and standardized the legal aid system, but its legal effect is not high enough. Cases that do not conform to the provisions of the Criminal Procedure Law and the Lawyers Law? 〔 1〕? Criminal procedure law and lawyer law take precedence. ?
(4) The development of legal aid is unbalanced, with great regional differences. Due to the unbalanced economic development, the funds for legal aid in the eastern coastal areas are substantial and the work is carried out well; In the western region, the lack of legal aid funds makes it difficult to carry out the work, and it is also difficult to get the attention of leaders and the recognition of the people. ?
Third, improve China's criminal legal aid system?
Criminal legal aid is one of the contents of legal aid, and it is the legal obligation of lawyers to provide legal aid to criminal suspects and defendants with financial difficulties. ?
Legal aid system plays an important role in international criminal justice norms. Article 14 of the International Covenant on Civil and Political Rights stipulates that the defendant has the right to appear in court for trial and defend himself in person or through legal aid of his choice; If he doesn't have legal aid, he should be informed that he enjoys this right, and legal aid should be appointed for him if judicial interests require it, but he should not pay legal aid himself if he is unable to pay it. For the expenses involved in this standard, some countries adopt the method that the defendant who can afford it in criminal proceedings bears it himself. For example, in Japan, defense costs are considered as part of litigation costs, and the judgment is borne by the defendant. However, if a request is made because of poverty, it shall be exempted. ?
Due to the imperfect legal aid system, the proportion of legal aid in criminal cases in China is smaller than that in developed countries, and there is still a considerable gap between the requirements of relevant United Nations standards and the practices of developed countries. This requires taking active measures to improve the legal aid system. ?
(a) to solve the problem of legal aid costs?
The amount of funds directly affects the scope of implementation of legal aid. Like most countries, the lack of funds for legal aid has become a "bottleneck" factor restricting the development of legal aid in China. ? 〔2〕? Therefore, it is necessary to establish a system in which the government and the society do their respective duties to promote the development of legal aid. The following measures can be taken to solve the funding problem:
① Strengthen the collection and management of legal aid funds. After the legal aid funds are included in the national financial budget, governments at all levels should increase their investment in legal aid; At the same time, give priority to government financial allocation, and then collect social funds to enrich the legal aid fund, so that it can play a greater role. ?
(2) The Criminal Procedure Law stipulates that the defense expenses required for the appointment of a defense lawyer shall be borne by the defendant, except for those who are unable to hire a defense lawyer due to financial difficulties. ?
③ Establish a legal aid system with decreasing lawyer fees. China's legal aid fees are either completely free or unavoidable, lacking a diminishing system, and the benefits are too narrow. The legal aid system of reducing lawyer fees in France is worth learning from. ? 〔3〕?
(two) organize a strong team, take effective measures to carry out systematic theoretical research, produce a number of contending, complementary and even comprehensive theoretical monographs, and form the framework of China's legal aid theoretical system as soon as possible. ?
(3) Formulate a law on legal aid as soon as possible, establish the rights, obligations and legal responsibilities of recipients and aid subjects in the form of law, and ensure the development of legal aid in China in the direction of institutionalization and regularization. ?
(four) make full use of private resources to further expand the scale of legal aid team. Personnel with legal expertise in political and legal colleges and legal research institutions should actively provide help to those who need legal help in the form permitted by national laws without affecting legal education and research. ?
(5) The news media should pay full attention to the development of legal aid in China, and correctly guide citizens to gradually understand China's legal aid system through publicity activities, so that citizens who meet the conditions of legal aid can obtain legal aid and realize their legitimate rights and interests. ?
(6) Establish a public defender system?
The premise of criminal legal aid is to have enough lawyers to protect it. In order to ensure that lawyers can provide effective defense for specific criminal suspects and defendants, according to the characteristics of criminal proceedings, we should establish a public defender system, set up a public defender institution and choose public defenders. ?
1, set up a public defender?
Some western scholars, such as Meyer, advocate the establishment of the same defense organization as the procuratorial organs, the implementation of designated defense, and the abolition of selective defense. During the Republic of China, the appointed lawyer as a defender stipulated in the Criminal Procedure Law was changed to the appointed public defender. The legislative reason for this amendment is: "Since the implementation of the appointed defense system in China, there have been many lawyers with high morality and strong sense of responsibility, and many people have defended the appointed cases wholeheartedly. But in order not to get considerable remuneration, most of them are perfunctory. Since it is not conducive to the defendant and there is a danger of delaying the case, it is necessary to correct this system and adopt the public defender system. " However, Zhu, a scholar in the Republic of China, pointed out that while implementing the compulsory defense system, it is not necessary to rule out the optional defense system. "On the one hand, it is mandatory, but on the other hand, it also allows defendants to choose lawyers as defenders according to their own beliefs. Public defenders and private lawyers can coexist under the compulsory defense system. " Because, "First, the defendant's trust in the defender should be taken into account; Second, the defense organs or public defenders under the salary system are always inferior to lawyers under the salary system, and they are particularly willing to do things faithfully for the parties. " ? 〔5〕? It should be said that Professor Zhu's point of view is practical. ?
2. Choose a public defender? Select a certain proportion of lawyers with criminal litigation expertise from the national lawyers as public defenders. Public defenders specialize in defending criminal cases, and their wages, benefits and daily expenses are guaranteed by the state and counted as national civil servants. At the same time, the minimum amount of free legal aid provided by public defenders to defendants in criminal cases every year is stipulated. Those who have not completed the quota will not be registered unless there are reasonable reasons specified in advance. The minimum amount can be calculated according to the sum of the number or time of handling cases.