On the shortcomings and improvements of my country’s criminal defense system

[Abstract] After the promulgation and implementation of my country’s new Criminal Procedure Law in 1996, the previous criminal defense system has been modified to a certain extent. Such changes include advancing the time for lawyers to intervene in criminal proceedings, determining the equal status of the prosecution and defense, and changing the incorrect practices of judges of "investigating first and then trial" and "deciding first and then trial", etc. However, through several years of practice, we have found that in addition to the inability to implement these existing systems well, there are also difficulties in meeting, applying for changes in compulsory measures, investigating and collecting evidence, reading papers, and adopting lawyers' defense opinions, etc. Therefore, in order to establish and form a complete criminal defense system, the author believes that the above-mentioned related deficiencies should be further improved to align with international standards.

The criminal defense system is an important part of the modern national legal system. The continuous improvement and improvement of the criminal defense system is an important symbol of the scientificization and democratization of criminal proceedings. After the revision of the Criminal Procedure Law in 1996, our country's criminal defense system has developed to a certain extent. However, in practice, the defense system stipulated in the revised Criminal Procedure Law has exposed many shortcomings. The United Nations International Covenant on Civil and Political Rights (hereinafter referred to as the Covenant) clearly stipulates that the person being prosecuted has the right to obtain a defense as a basic principle of criminal proceedings. The Eighth United Nations Conference on the Prevention of Crime and the Treatment of Offenders adopted the "On Lawyers" Basic Principles on the Function of the People's Government (hereinafter referred to as the "Principles") further elaborates on the above-mentioned rights. As a signatory to the Convention and a signatory to the Code, our country should abide by its obligations under the Convention and respect the Code, and comprehensively and thoroughly implement the spirit of the Convention and the Code. It is imperative to identify the shortcomings and gaps in our current criminal defense system and improve them.

1. Theoretical research on the concept of criminal defense system

(1) The concept of criminal defense system

The defense system is the legislative approach to implement the defense principles A general term for measures and methods [1]. The defense system originated in Western society. It has mainly gone through three stages, namely the embryonic stage of ancient Rome, the repressive stage of the Middle Ages and the development stage after the bourgeois revolution. In our country, the defense system has also gone through three stages, namely the stage before the founding of the People's Republic of China, the stage after the founding of the People's Republic of China, and the development stage after the Third Plenary Session of the Eleventh Central Committee of the Communist Party of China [2]. In feudal society, our country did not have a defense system. The inquisitorial trial method implemented in In the Qing Dynasty, influenced by Western ideas, the "Qing Criminal and Civil Procedure Law" formulated by the Qing government in 1901 stipulated the participation of lawyers in litigation, giving parties the right to hire lawyers to defend themselves. Separate regulations on lawyers only began to appear in the "Interim Regulations for Lawyers" and the "Interim Regulations for the Registration of Lawyers" formulated by the National Government. After the founding of the People's Republic of China, the defense system of New China continued to develop. In 1954, the first Constitution of New China stipulated: "The defendant has the right to obtain a defense." The Organic Law of the People's Court stipulated: "In addition to exercising the right to defend himself, the defendant may entrust a lawyer to defend him." This legislatively affirmed the defense system, and the lawyer system developed as a result, but was later discontinued due to historical reasons. After the Third Plenary Session of the 11th Central Committee of the Communist Party of China, with the advancement of economic system reform and democratic construction, China's criminal defense system was restored. In 1979, the Criminal Procedure Law of the People's Republic of China clearly stipulated the criminal defense system. Later, a large number of judicial interpretations, approvals, notices, etc. were formulated to further clarify the criminal defense system. In March 1996, the National People's Congress revised the 1979 Criminal Procedure Law, which remains in effect today.

(2) Classification of criminal defense

According to the current provisions of the Criminal Procedure Law, criminal defense in my country is divided into three categories, namely self-defense, entrusted defense and designated defense. Among them, entrusted defense refers to the criminal suspect, defendant or their close relatives entrusting persons permitted by law, mainly lawyers, to defend them through the form of an entrustment contract. This kind of defense is a relatively important institutional content in the criminal defense system. Designated defense means that when encountering special circumstances stipulated by law, the court appoints a lawyer to defend a defendant who has not appointed a defender.

2. The current situation and shortcomings of my country’s criminal defense system

The promulgation of the revised Criminal Procedure Law in 1997 does give people a feeling of fresh air, especially those who play the leading role in criminal defense. lawyer. However, after a period of practice, it was discovered that the relevant departments did not fully comply with the provisions of the Criminal Procedure Law. Instead, they each stood in the perspective of departmental interests and successively formulated "explanations" that went beyond the law to safeguard departmental interests. , making it impossible for the Criminal Procedure Law to be fully implemented and implemented, leading to the current situation. From the perspective of a lawyer, the author summarizes the current situation and existing shortcomings and defects of my country's criminal defense system into "several difficulties" and explains them as follows:

First, it is difficult to meet.

The revised "Criminal Procedure Law" has advanced the time for defense lawyers to intervene in litigation from the original seven days before the trial to the investigation stage, which is what Article 96 of the "Criminal Procedure Law" stipulates: After interrogation or from the date when compulsory measures are taken, a lawyer can be hired to provide him with legal advice, represent him in appeals and accusations... The entrusted lawyer has the right to learn about the suspect's alleged crimes from the investigative agency, and can meet with the criminal suspect in custody and report to the criminal suspect. The criminal suspect knows the relevant circumstances of the case...". "Two Houses, Three Ministries and One Committee" (the Supreme People's Court, the Supreme People's Procuratorate, the Ministry of Public Security, the Ministry of National Security, the Ministry of Justice, and the Legal Work Committee of the Standing Committee of the National People's Congress) issued the "About the Criminal Procedure Law" on January 19, 1998 Article 11 of the Provisions on Several Issues in the Implementation" further clarifies that "if a lawyer proposes to meet with a criminal suspect, the meeting shall be arranged within forty-eight hours. For the crimes of organizing, leading, and participating in underworld organizations, organizing, leading, and participating in terrorist organizations If a lawyer proposes to meet with the criminal suspect in a major and complex criminal case involving two or more persons, such as smuggling crime, drug crime, corruption and bribery crime, etc., the meeting shall be arranged within five days. "In this provision, regarding lawyers. The word "should" is used for early intervention interviews, requiring relevant departments to make arrangements within 48 hours and five days. However, in practice, the relevant departments do not fully implement this, but they all have certain "reasons". The specific manifestations are: first, making various excuses (either saying that the personnel are too busy and have no time, or that the person in charge is on a business trip, or (said the person in charge is on sick leave...), and the delay can be indefinite, ranging from as little as a week to as much as ten days, or even more than a month; second, interviews with criminal suspects under residential surveillance must obtain the consent of the investigation agency. Although Article 24 of the "Regulations" of the two Houses of Representatives, three ministries and one committee clearly states that criminal suspects under residential surveillance "do not need approval to meet with their hired lawyers." However, in practice, due to the change of residential surveillance into variable custody, Detaining criminal suspects in a fixed place makes it even more difficult for lawyers to meet with them; third, it is difficult for lawyers to meet with criminal suspects alone. The legislation provides relatively flexible provisions for lawyers' individual interviews during the investigation stage, that is, when lawyers meet with criminal suspects in custody, the investigative agency can send personnel to be present based on the circumstances and needs of the case. However, in practice, almost all cases are attended by personnel, and lawyers are prohibited from meeting alone. What's more, interviews with lawyers during the review and prosecution stage, as well as interviews with lawyers at the second trial stage, are all attended by representatives, and individual interviews are prohibited. This approach is contrary to the provisions of the "Regulations" of the two chambers, three ministries and one committee. Article 12 of the "Regulations" clearly states: During the review and prosecution stage and the trial stage, when the case has been investigated and completed, when defense lawyers and other defenders meet with criminal suspects or defendants in custody, the People's Procuratorate and the People's Court will not send personnel to be present; fourthly, Because this case involves state secrets, lawyers are not allowed to meet with him. In order to safeguard national security, the Criminal Procedure Law imposes certain restrictions on meetings between lawyers and criminal suspects. The "Regulations" of the two Houses, three ministries and one committee clearly interpret "cases involving state secrets" as: It means that the circumstances or nature of the case involve state secrets and cases. It also clearly states that for cases that do not involve state secrets, lawyers do not need approval to meet with criminal suspects. However, in practice, many case investigators use "state secrets" as an excuse to give arbitrary interpretations of "state secrets" and exclude lawyers. All investigative actions in criminal cases are state secrets and cannot be investigated for criminal offences. The matters in are all called state secrets, economic crime cases are under special circumstances, individual cases are handled as special cases, etc.; fifth, the time and number of meetings between lawyers and criminal suspects are limited, the content of interviews is controlled, recording is prohibited, etc. , making the interview a mere formality and in vain; Sixth, the investigators did not fulfill their obligation to inform, so the criminal suspects in many cases did not know to hire a lawyer, and some did not provide convenience for them. Many criminal suspects did not know how to hire a lawyer, and the defense lawyer did not know how to hire a lawyer. We're in place, let's talk about meeting! ?

Second, it is difficult to apply for changes in compulsory measures. Article 96 of the Criminal Procedure Law stipulates that a defense lawyer may apply for bail pending trial for a criminal suspect after he or she is first interrogated by the investigative agency or from the date on which compulsory measures are taken. Article 75 of the Criminal Procedure Law also stipulates Lawyers and defenders entrusted by criminal suspects or defendants have the right to request the lifting of the compulsory measures if the people's courts, people's procuratorates or public security organs take compulsory measures beyond the statutory time limit. Article 20 of the "Regulations" of the two courts, three ministries and one committee further It is clearly stipulated that when a lawyer applies for bail pending trial, the authority with the power to decide whether to agree or not should respond within seven days. Regarding the right of defense lawyers to apply for changes in compulsory measures, judging from the implementation situation, the above-mentioned provisions are basically a piece of paper and are rarely implemented. For example, criminal suspects suffer from serious diseases and do not meet the conditions for arrest. Secondly, the phenomenon of extended detention is still prohibited. Some specialized agencies ignore and do not respond to lawyers' applications for changes in compulsory measures. Furthermore, they are motivated by interests and charge high amounts. Security deposits. The security deposits in many cases can easily reach hundreds of thousands. In some cases, high security deposits are required and the suspects are asked to find a guarantor. The criminal suspect cannot afford the astonishingly high security deposit, so applying for bail pending trial is an empty promise. ?

Thirdly, investigation and evidence collection are difficult. Whether national law gives defense lawyers the right to investigate and collect evidence, and how lawyers investigate and collect evidence, is an old question in the field of criminal procedure law. However, in judicial practice, defense lawyers should have this right.

Because the right of investigation and evidence collection is an important manifestation of the right of defense, it is an important means to realize the right of defense. If the lawyer's right of investigation and evidence collection is not recognized, or the lawyer's right of investigation and evidence collection is restricted or deprived of, this lawsuit is an incomplete lawsuit and an unhealthy lawsuit. . As far as the theory of criminal procedure law on litigation structure is concerned, the right to investigate and collect evidence should be one of the indispensable contents of modern criminal litigation activities [3]. However, the exercise of the right to investigate and collect evidence by our defense lawyers is difficult. The resistance, obstacles and risks of any investigation are unimaginable. In recent years, hundreds of lawyers have been detained or arrested on charges of perjury during investigations and evidence collection. Among the lawyers, there are people who create false evidence and fail to correctly perform the right to investigate and collect evidence, but they are individuals after all. The vast majority of these lawyers who have been arrested have been acquitted, which fully illustrates this problem. At present, there are three main reasons why it is difficult for lawyers to investigate and collect evidence: First, our country’s legislation does not clearly stipulate lawyers’ right to investigate and collect evidence during the investigation stage. According to the provisions of Article 37 of the Criminal Procedure Law, defense lawyers have the right to investigate and collect evidence only during the review and prosecution stage, which results in the defense lawyers’ investigation actions during the investigation stage being without legal basis. Some lawyers’ investigations during the investigation stage are either regarded as If it is an act of perjury, the public security and judicial organs will regard the materials obtained as incompetent as evidence and will not accept them. Therefore, many lawyers call the investigation activities at the investigation stage "risk investigation." Second, the legislation limits lawyers’ investigative powers. The legislation gives defense lawyers the right to investigate and collect evidence from the stage of review and prosecution, but there are conditions. On the one hand, the investigation must obtain the consent of the relevant units and individuals; on the other hand, it must obtain the permission of the People's Procuratorate and the People's Court. Furthermore, our country's legislation is euphemistically called, giving defense lawyers a "right to apply for investigation", that is, the Criminal Procedure Law Lawyers as stipulated in paragraph 1 of Article 37 of the Lawyer “can apply to the People’s Procuratorate and the People’s Court to collect and investigate evidence.” However, this right to apply is often in vain. Either the application is only made without results, or the investigation materials and results are not responded to and informed. Some prosecutors even make strange remarks, such as "How can there be such a cheap thing in the world? You have to I contribute money, but there is no door!” Third, certain public security and judicial organs and personnel confused the boundaries between lawyers' correct performance of duties and fabrication of perjury during the investigation and evidence collection process. They did not analyze lawyers' investigations and denounced them as fabrication of perjury. They even dismissed the elements of the crime of perjury. Lack of correct understanding, there is no subjective intention to create perjury, and there is no behavior or language to create perjury. Due to the lawyer's investigation, the witness told the truth, the criminal suspect recanted the confession, and the investigating lawyer brought perjury. Sin hat. Therefore, many lawyers have lingering fears and take risks to engage in criminal defense. Even most lawyers simply do not conduct investigations after accepting the entrustment, making it difficult to guarantee the quality of defense.

Fourth, it is difficult to grade. In the process of criminal proceedings, lawyers review case files and understand the facts of the case, which is the key and core to exercising the right to defense. Because only by understanding the prosecution’s evidentiary materials can we put forward targeted defense and defense opinions. Legislation and practical work in various countries around the world attach great importance to this link. In order to realize this right of lawyers, many countries have created evidence A discovery system is established to provide lawyers with sufficient conditions and opportunities to access case file materials. However, in our country, from the legislation of criminal proceedings to the practice, this important right of defense lawyers has not been implemented. Its manifestations are as follows: First, the newly revised Criminal Procedure Law focused on the reform of trial methods. In order to solve the problems of first judgment and then trial and first decision and then trial, the People's Procuratorate no longer transfers the original file and the entire case to the court when prosecuting. As a result, the lawyer's right to review the case before the trial is greatly weakened. Even the lawyer community has reported that the legislation regarding the lawyer's right to review the case has been greatly regressed and is not as good as the original provisions of the Criminal Procedure Law. This view is not unreasonable. Reasonably, according to the provisions of Article 150 of the Criminal Procedure Law, lawyers can only see the indictment, the evidence catalog, the list of witnesses appearing in court and copies of the main evidence before the trial. It is obviously a step backwards; secondly, what the lawyer saw before the trial was only a "copy of the main evidence". As for what is a "copy of the main evidence", although the "Regulations" of the three ministries and one committee of the two houses of Congress stipulated that the "copy of the main evidence" is "The scope of "Main evidence" clearly states: "Main evidence" includes: (1) the main evidence in each type of evidence involved in the indictment; (2) multiple pieces of evidence of the same type that are determined as "main evidence"; (3) as Legal sentencing circumstances include evidence of surrender, meritorious service, recidivism, suspension, attempt, and legitimate defense. However, during execution, some use secondary evidence as primary evidence, hide the primary evidence, and use it as "heavy artillery shells" until they are revealed in court, in an attempt to catch the lawyer off guard and put him in a passive position; Only the main evidence that proves the defendant's guilt is transferred to the court, while the main evidence that proves the defendant's innocence or minor crime is hidden and not sent. The lawyer cannot see it before or in court; what's more, some places make excuses Due to financial difficulties, neither a copy machine nor paper for copying, and the copy machine is broken, only the indictment, evidence list, and list of witnesses appearing in court will be transferred. All evidentiary materials will not be transferred, depriving the lawyer of the right to review the case before the trial. ; Third, the grading during the review and prosecution stage is a mere formality and cannot solve actual problems. Article 36 of the Criminal Procedure Law stipulates that defense lawyers may consult, excerpt, and copy the litigation documents and technical appraisal materials of the case from the date of review and prosecution of the case by the People's Procuratorate.

This provision of the legislation is a restriction on the lawyer's right to review documents. That is, lawyers do not have the right to review evidence materials that are decisive for conviction and sentencing. They only have general litigation documents and individual identification materials. This limited right only cannot be used in actual work. , there are also many restrictions, especially the appraisal conclusions that are of decisive significance in this case. The procuratorial organs have made various excuses not to review them. Even if they have reviewed them, the parties or lawyers who have questions about them and apply for re-identification will be turned away. , not allowed. ?

Fifth, it is difficult to adopt the lawyer’s defense opinions. Since the reform of the defense system, less than 30% of my country's lawyers have participated in litigation, 70% of criminal cases cannot hire lawyers, and most lawyers are unwilling to participate in criminal proceedings. This situation will not be discussed and evaluated for the time being. As for the cases that have been involved in litigation, most of them are still in the "you defend your case and I will judge mine." To borrow a judge's statement at a meeting [4], we now judge criminal cases Cases are still judged based on the prosecution's evidence. The reason is that on the one hand, it is difficult to hire a lawyer and it is not easy to hear the lawyer's voice; on the other hand, the judge does not pay attention to the lawyer's opinions in court and cannot listen to them. He is still used to it. Yu, the prosecution and the prosecution worked together to deal with the defendant. Especially when the defense of innocence involves the accountability of relevant law enforcement departments and law enforcement officers, it is even rarer that such defense opinions are adopted. For example, a criminal suspect (student at a vocational college) was forced by life to rob the victim from behind on foot, with bare hands, or on foot around 10 p.m. The victim was unprepared. Due to the involvement of the bag and the momentum Due to the inertia of the victim, the victim was pulled to the ground. Without performing any second act or having any physical contact with the defender, the suspect forcibly pulled (2-3 meters away) and snatched the victim's satchel. As he walked away, the victim's knees were scratched by the ground. After the incident, the public security organs detained the perpetrator on suspicion of robbery. After identification, the value of the stolen property was more than 300 yuan. (According to regulations, if the amount of robbery is less than 1,000 yuan, it does not constitute robbery. crime), the public security agency later reported him for arrest and transferred him for prosecution. After the final trial, the case was still determined to be robbery. The first-instance procuratorial organ made the charge based on the Jiangsu Provincial High Court's regulations that if the victim finds out that he has been robbed during the robbery, and the perpetrator resorts to force to rob, he will be punished as robbery. When this case occurred, the Supreme People's Court had made a new decision. The judicial interpretation of the Supreme People's Court clearly stipulates that only those who are forcibly pulled while driving or riding in a vehicle will be punished as robbery. In the first instance, the defender argued that it did not constitute robbery. In the second instance, the defender proposed a new judicial interpretation of the Supreme People's Court, holding that this case It does not constitute a crime, but none of them have been adopted. At the same time, the defense opinions have not been reasonably explained. Of course, such defense opinions are not correct.

3. Some ideas on improving our country’s criminal defense system

Under the current circumstances, it is very necessary to improve our country’s criminal defense system. At the same time, the United Nations’ “Civil and Political Rights” There are many systems in the "International Convention" and "Basic Guidelines on the Role of Lawyers" that fully embody the judicial concept of promoting democracy and people-centeredness. They are also worthy of learning and reference for improving our country's criminal defense system.

(1) Take the realization of a balance between prosecution and defense as a breakthrough, truly establish a prosecution-defense criminal litigation system based on adversary doctrine from the legislative to judicial levels, and end the current transitional system of neither donkey nor horse as soon as possible The criminal procedure method [5]. The prosecution is strong and the defense is weak. In essence, it cannot constitute a prosecution-defense criminal procedure model. The current criminal litigation system, which is nominally a prosecution and defense style, is actually inferior to the inquisitorial litigation model of state authority. Under the old Criminal Procedure Law, lawyers could at least read all evidence and materials that were favorable or unfavorable to the defendant. But now it is difficult to even read evidence and materials that are unfavorable to the defendant, let alone investigate and collect evidence. In a sense, the current Criminal Procedure Law objectively creates a situation in which the prosecution is strong and the defense is weak, making the current criminal procedure system more prone to "one step forward and two steps back" than the old criminal procedure system. Strange phenomenon. From the perspective of the evolution of the human criminal procedure system, whether to restrict or expand the criminal defense rights of lawyers is the key to establishing a criminal procedure system or model. Whether a lawyer's right to criminal defense can be effectively protected is a sign of the civilization and progress of a country's criminal procedure legal system. Therefore, ensuring the effective realization of lawyers’ criminal defense rights and achieving a balance between prosecution and defense at the judicial level rather than just at the legislative level are the needs and inevitability of reforming and improving my country’s current criminal procedure system and deepening judicial reform.

(2) Article 387 of the Criminal Law shall apply to the behavior of state agency staff members who intentionally obstruct, restrict, or deprive lawyers of their right to exercise criminal defense or hinder or restrict lawyers from performing their duties while performing official duties. Convicted and punished for abuse of power. Although it is necessary to cancel Article 306 of the Criminal Law and Article 38 of the Criminal Procedure Law, it does not necessarily completely eliminate the obstruction of state agency staff, especially public, prosecutorial and legal agency staff, in the performance of official activities. , restricting or depriving lawyers of their criminal defense rights, or obstructing or restricting lawyers from performing their duties. Therefore, it is even more necessary to regulate such socially harmful behaviors through criminal penalties.

It is recommended that the Standing Committee of the National People's Congress make a legal interpretation or the Supreme People's Court make a judicial interpretation, classifying the behavior of state agency staff who obstruct, restrict, or deprive lawyers of their criminal defense rights in the performance of official duties or hinder or restrict lawyers from performing their criminal defense duties as a crime of abuse of power. and allow lawyers to directly bring private prosecutions to the court. If this can be done, lawyers will have a "nemesis" in criminal defense, and lawyers' criminal defense rights will be effectively protected by law.

(3) To the greatest extent possible, implement the international standards for lawyers’ rights stipulated in the United Nations’ International Covenant on Civil and Political Rights and the Basic Norms on the Role of Lawyers. The "Basic Principles on the Role of Lawyers" adopted at the 8th United Nations Conference on the Prevention of Crime and the Treatment of Offenders, held in Havana, the capital of Cuba, from August 27 to September 7, 1990, is the most comprehensive statement on the rights of lawyers in the international community to date. and the most important documents. Although the document is not legally binding, as the document states, it is only formulated to assist member states in promoting and ensuring that lawyers play their proper role. Governments should respect these provisions in their national legislation and practice, and remind lawyers and others that Such as judges, prosecutors, administrative law enforcement officers and the general public should pay attention to it. However, this document confirms the basic rights and role of lawyers that are generally recognized by the international community, reflects the achievements and knowledge of the progress and civilization of human society, and has certain authority and universal applicability. In recent years, the Party Central Committee has determined the strategy of governing the country according to law and building a socialist country ruled by law. Our country has also joined the WTO. Theoretical innovation and institutional innovation are basic requirements for building socialism with Chinese characteristics. We should keep pace with the times, learn from the legal achievements and judicial culture of all advanced civilizations created by human society in promoting judicial reform, and build advanced legal civilization and judicial civilization. Implementing international standards for lawyers' rights will undoubtedly help promote my country's judicial reform, promote the process of building a socialist country under the rule of law, and help build my country's rule of law civilization and judicial civilization. At present, the most pressing issue surrounding lawyers’ “difficulties in criminal defense” is to implement Article 20 of the Basic Principles on the Role of Lawyers, that is: “Lawyers shall make honest oral or written arguments or statements in court, Articles 16, 17, and 21 shall be implemented for relevant official acts performed before a court or other legal or administrative authority, that is, the government shall ensure that lawyers are not threatened, hindered, or avoided. The right to perform duties and to freely meet with clients in the event of harassment and undue interference; to ensure that lawyers are provided with adequate security protection when their safety is threatened in the performance of their duties; to ensure that lawyers have access to possible information and documents in the possession or possession of the prevailing authorities and data rights, etc. By integrating these rights into our country's criminal defense system, it can be said that such a criminal defense system will become more substantial and advanced.

(4) Establish an evidence discovery system. This system originated from the common law system. It is a system in which the defense and defense parties present evidence to each other before the trial [6]. It was later adopted by many civil law countries. Since the prosecution is absolutely superior to the defense in its ability to collect evidence, and the limited evidence possessed by the defense is generally available to the prosecution, the discovery system is considered to be a guarantee for the defense to exercise its right of defense. Our country has established the principle of evidence discovery in litigation, which can enable the defender to understand the prosecution's evidence and have the opportunity to conduct investigation and verification; it can enable the prosecution to know the contradictions between the evidence of both parties and eliminate them in a timely manner to reduce errors and improve the efficiency of litigation; as a judge The courts can also be targeted. It facilitates the full exchange of evidence and information during the trial, thus shortening the distance between the participants in the proceedings and their understanding of the facts of the case and the facts of the crime.

(5) Establish a system of inversion of the burden of proof. In criminal proceedings, according to the principle of distribution of the burden of proof, the burden of proof is borne by the prosecutor or the party making the accusation, and the accused party should not bear the burden of proof. However, in certain circumstances, the law may also stipulate that the burden of proof rests on the accused party. This is an inversion of the burden of proof. For example, Article 395 of my country's Criminal Law stipulates that the crime of huge amounts of property of unknown origin reflects the inversion of the burden of proof. This provision also demonstrates the necessity of the inversion of the burden of proof system in legislation and judiciary. In judicial practice, we often encounter situations where criminal suspects and defendants retract their confessions. The main reason for retracting their confessions is that they were tortured to extract confessions during the investigation stage. Once this happens, it will directly affect the fair and timely judgment of the case. Most of the wrongful conviction cases discovered were related to torture to extract confessions. According to the current practice, the defendant who claims that he was tortured to extract a confession during the investigation stage must bear the burden of proof for his claim. However, on the one hand, those who are tortured to extract confessions are generally in a situation where they have lost their freedom and are isolated and helpless. They are completely under the control of the investigative agencies. The specific environment in which they are located makes it difficult to collect evidence. On the other hand, the investigation phase lasted for several months. By the end of the investigation, the injuries caused by torture had basically healed. Unless he was disabled or killed by torture, the traces of torture would have long disappeared. Finally, even if prosecutors or judges intervene in the investigation, it will be difficult to obtain evidence because most of the torturers and insiders are acquaintances and colleagues. These reasons make some investigators feel more confident when conducting torture to extract confessions.

Establish a system of inversion of the burden of proof in the Criminal Procedure Law, and clearly stipulate that in cases where the defendant claims that a confession was extracted by torture, the investigator accused of torture shall bear the burden of proof. If he cannot prove with sufficient evidence that he did not extract a confession by torture, He should be sentenced to bear the legal responsibility or consequences of torture to extract a confession, which has practical and historical significance for effectively safeguarding the defendant's legitimate rights and interests.

(6) Grant corresponding immunity to the defender[7]. The main responsibility of the defender is to provide opinions and materials that prove that the criminal suspect or defendant is innocent, that the crime is minor or mitigated, or that he or she is exempted from criminal responsibility. Protect the legitimate rights and interests of criminal suspects and defendants. If there is a conflict between the defense and prosecution's understanding of the facts of the case, or simply because the lawyer's remarks in defense are inconsistent with the facts found, he can be held legally responsible, which will inevitably lead to a crisis in the defense. In practice, some judicial authorities regard the investigation and evidence collection or interviewing of defense lawyers who correctly perform their duties as fabricating perjury, causing the lawyers to be detained or arrested. This has led some lawyers to believe that "criminal defense is dangerous" and are unwilling to accept the entrustment. To a certain extent, it restricts the full exercise of the defense rights of criminal suspects and defendants. Therefore, only by granting them the right to be exempted from legal prosecution for their defense actions can we better protect lawyers' personal rights and litigation rights as independent subjects, and promote the healthy development of the defense system. However, in the process of exercising the right of defense, defenders must do so in accordance with the law. Defenders who instruct criminal suspects and defendants to collude in confessions, retract confessions, or fabricate evidence must be seriously investigated and dealt with.

"A system cannot be improved if it is not criticized." As mentioned above, our country's criminal defense system is facing further reform and improvement. It is foreseeable that in the near future, our country's criminal defense system will be more complete and perfect. In the process of building socialist human rights and the rule of law, it will surely play a more important role.

Huaiyin District People's Court of Huai'an City, Jiangsu Province·Zhao Chuanbao Chen Jun