Reflection on the Relationship between
Defense Counsel and Parties
Wang Jiancheng
Yang Xiong
I. Existing Problems
In criminal proceedings, it is no doubt that the relationship between
the criminal defense counsel and the parties (suspected criminals and
defendants) is the key point to understand the defense counsel’s litigant
status and role. In 1996, the amendment of criminal procedure law and law
of advocate brought a leap of quality of recognition to the lawyer’s litigant
status (including the defense counsel), which changes from the thought of
“the country’s legal workers letting justice prevail for people and
safeguarding the country’s interests and the social public order” (the
Temporary Regulation of Lawyer Article 1, in 1980) to the view of
“executing officials providing legal services for the society” (Law of
Advocate Article 2, in 1996). It is no doubt that the change of recognition
brought the far-reaching influence to the status and function of the lawyer
career in the society of China. Nevertheless, the people’s thought is still in
the traditional made of thinking to the relationship between the lawyer and
the party. Some scholars pointed that in the countries of Anglo-American
Law and Continental Law Legal Chain, because the lawyers are the liberal
and professional officials, the relationship between the lawyer and the
party is the employee and employer after the lawyer trusted by the persons
prosecuted. The lawyer engaged are the spokesman of the party, whose

[Author’s Brief Introduction] Wang Jiancheng (1962---- ) , LL.D, Professor, Law School in
Peking University. Yang Xiong (1979--- ) , Graduate Student of LL.D, Law School in Peking
University.
1
words and deeds conveys with the will of the persons prosecuted.
Compared with the lawyers in the bourgeois countries, pursuant to the
present Criminal Procedure Law and Law of Advocate of China, the
Chinese lawyers are the executing officials providing legal services for the
society, who have legally acquired the lawyer certificate under law. After
the lawyers accept the invitation (trust) of the persons prosecuted, the
relation of both sides is the serving and served relationship other than the
employing and employed relationship. The lawyer trusted is the legal
service office other than the spokesman, whose behavior is not affected by
the parties’ will. In the course of providing legal help, the lawyer not only
safeguards the party’s lawful rights and interests but also maintains to
correctly carry out the country’s law.1 The most scholars insist that the
defender should have the independent litigant status, whose prominent
performance is that the defender develops defense activity with taking his
own will other than depending on the will of the suspected criminal and
criminal defendant.2 It is no doubt that this kind of main trend recognition
plays a promoting role in emphasizing the lawyer’s litigant status and
changing the lawyer taking part in litigation in a low degree at present. The
common characteristic of the recognition is that the independence of
defense counsel status has been emphasized excessively and the reliant
relationship between the lawyer and the party has been desalinated even
obliterated, therefore, the unharmonious notes with the defense system role
of the modern law-governing country has appeared in the practice of
legislation and judicature. The author believes that the following
phenomena have a thousand and one links with the recognition, which
people cut off (separate) the relationship between the lawyer and the party
deliberately or accidentally, including the lawyer’s meeting right in secret,
the lawyer not be present when the client is interrogated, the separation of
1Zhou
Guojun: “Correct Recognition to The Relationship between Lawyers and Persons Prosecuted
and to Safeguard Lawyers’ Litigant Right”, Politics and Law Forum, NO. 5, 1997.
2Fan Chongyi, Chief Editor, Criminal Procedure Law Theory, Recension, 1999, the Chinese
Political and Legal University Press, 1999, P130-131.
2
court structure setup, the limitation of defense means, the excessive partial
recognition to the defense counsel (for example, the lawyer is “the person
exculpating crime for the villain”) and so on. Therefore, if the developed
criminal defense system is establishied in China, we must deeply review
this problem.
II. The Justification for Existence of Defense Counsel
——Reestablishing the Relationship between Defense Counsel and
The Parties
i. The Persons Prosecuted: The Right Foundation of Defense
Counsels
The defender system has been traced back to the ancient Roman
Times, however, at that times the defender system could not be mentioned
in the same breath as that under the modern proceeding system. In the
impeaching litigant mode of the ancient Roman, both the plaintiff and the
defendant’s status was equal, the procedure of hearing a case was that the
plaintiff raised the accusatory reasons and evidence and then the defendant
put forward the contradicted reasons and evidence then the judge made an
adjudication. The defendant possessed the defense right and defended with
litigation for his own interests. In the court some ways could be used,
including confrontation, words and public in court, the defendant also
could be trusted a ortor who was proficient in defense to defend for him.
This kind of “spokesman” or “agent” was not the defender under modern
meaning, who was the defender’s rudiment because he was only on behalf
of the party to appear in court and participate in litigation, he hadn’t the
independent litigant status, in the lawsuit what he to do was determined by
the party’s will so that he didn’t develop litigant action independently. The
country didn’t give he inherent right, and in court his right completely
came from the party’s authority. From the original form of defense system,
clearly, the defense right of defenders came from the parties own at first.
3
As the Japanese scholar said, the foundation of defense right is that the
suspected criminals and defendants having the right to defend. This is the
basis bringing to trust the defense counsel and then to have the defense
right.3
Of course, under the feudal interrogating litigant mode, the rudiment of defense
right was seriously hold back and lost at last, the role of criminal defender was also
gradually shrunk and then was into the death. Up to the modern times, with the
capitalist enlightened thought overflowed and the democratic sense awakening, under
the mixed litigant structure, the defense system obtained vitality again, which has
been confirmed in the every stage of legislation and gradually developed into the
defense system with modern times meaning taking the defenders as the center. Under
the defense system with modern times the defender (including assigned and trusted
defender) is not only a “spokesman” or “agent” any more, however, he plays the part
of “right protector”, even he has been attached the more duty and responsibility with
safeguarding social justice. The defender has the more inherent rights (the right
existed on the basis of the defender himself), such as the right reading documents, the
right investigating and obtaining evidence and so on, however, the majority of these
rights came from the person prosecuted himself,4 only because of the limitation with
his own subjective and objective factors, the person prosecuted could not exercise the
rights favorably so that the defender performed the rights transferred in place of him.
Of course, it is seems that some rights of the defender are not connected with the
person prosecuted himself, however, in essences, it is necessary to safeguard the
defender to perform his duty, such as the right exempting words and so on.
In a word, the lawyer’s defense right is grounds on the litigant status
and right of the person prosecuted, and the establishment of the defender
system is really the consequence of the prosecuted person’s defense right
gradually expanding. From the nature, the prosecuted person’s defense
[Japan] : “The Japanese Criminal Defense Problem”, Liu Mingxiang, Translation, Developing
the Lawyer Way with the Chinese Characteristic, Law Press China, 1997, P90.
4 To this, the German scholar believes that the defenders’ inherent right came from the provision of
the criminal procedure law other than the parties. Wu Junyi, “The Relationship between Defenders
and Parties------The Discussion Taking The Germany Law as The Center”, Decree Magazine, NO.1
NO.54 Volume.
3
4
right is in the first place, however, the lawyer’s defense right is in the next
place. The existing of the lawyer’s defense right is attached to the person’s
defense right, the former is a means of achieving the latter, and the
accomplishment of the latter depends on the fulfillment of the latter. In this
sense, the defender cannot be separated from the party, and the rights of
both sides have a closed relationship. In a country, the safeguarding
measure to the defender’s right in legislation and jurisdiction usually
reflects the safeguarding condition of the defendants’ right. Because the
defendant is endowed with a lot of rights in law under many conditions, if
they don’t obtain the lawyers’ help, these rights will only remain on the
paper.
ii. Legal Specialization: Professional Foundation of Defence
Lawyers
The legal profession and specialization appeared with the social
division of labor. The French socialist Emir · Teran pointed: “The division
of labor is not the peculiar case in the economic living, we know that it has
brought the extensive influence in the most social fields. It is more and
more appearing the trend of specialization of the function in the political
and administrated and judicial field, it is true to the science and art.”5
When a country’s legislation became very complex so that the common
people cannot deal with the new social problems according to their
common sense and experience, it was necessary to develop the new social
division of labor. In a sense, the emergence of modern defender system is
on the foundation of what we mentioned above. As Roger · Coterwell
said:“ The final emergence of 'defender' is not the surprising matter,
therefore, with the legal procedure developing by the senior form in itself
and the legal system elaborated by the form of theory, it is necessary to
make the professional consultants and experts’ develop, who are proficient
5
[France] Emir · Teran: Social Division Labor Statement, Qu Dong translation, San Lian Bookshop,
2000, P2.
5
in the judicial process and are able to explain these procedures to the
common people.” 6 Apparently, under the modern judicial system, to
guarantee legal preciseness, accordance and authority, the high efficiency
of legal function and to carry out the justice and legality of the procedure
depends on the profession of legal organization.
The emergence of modern defense system is the ecbolic consequent
outcome of the legal specialization and litigation profession. In generally,
under the case law system in the Anglo-American Law countries, the files
of legal precedent are very vast and numerous and the judicial procedure is
very elaborated, as a result, the common people are not qualified for the
performance with defense function, as the chief judge Saseran of the
Federal Supreme Court in U.S. said, “if no a lawyer to deputize, even
though the defendant is absolutely innocent, it is very possible that the
defendant is convicted because he doesn’t learn about the rule of evidence
and cannot judge whether the accusation is established and he also doesn’t
know how to defend for his innocence.”7 In the countries of Continental
Law Legal Chain including France and Germany, although they have a
uniform statute law, the legal abstraction and generalization makes it
produce the peculiar language circumstances in itself, if the lawyers don’t
give help, the common people will hardly know what’s the law.
Accordingly, the legal profession has made the lawyer’s defense function
become the essential guarantee for the criminal proceedings efficiency.
We have reasons to believe that the defender is doomed to provide
legal services for the parties at the beginning, which they can access to the
law and procedure and achieve the desire with legal remedies and so on,
thus, they go up on the human historical stage and show their own peculiar
charm with the constantly civilization and advancement of society of
legality.
6
[Englnd] Roger · Coterwill: Legal Sociology Introduction, Pan Dasong translation, Hua Xia Press
1989, P207.
7
Powell v. Alabama , 287 U. S. 45（1932）.
6
iii.
Reliance
and
Collaboration:
The
Defenders’
Ethics
Foundation
We must acknowledge that the defender provide defense for the party
by means of his professional knowledge and skill, meanwhile, the
defendant also wants to make the defender become the protector for his
rights. This fact is built up on the basis of the reliant relationship between
the defender and the defendant. The authorized contract between the
defender and the party is embodiment of the reliant relationship, founding
on the contract concluded, the both sides have the inner relationship in
business. Even if under the condition with the court assigning the defender,
although there is not a concrete contract relationship between the defendant
and the defender, it is possible that this reliant relationship also is formed
between the defense counsel assigned and the defendant. This view is
prevailing in particular in the Anglo-American Law countries with the
contract conception struck root in the hearts of the people. Even if in the
Continental Law Legal Chain countries with advocating the country
standard, the mentioned above view has been also granted.8 The German
scholar Luder-ssen objected that the defense was viewed as a part of public
law because of Vertragsprinzip, thus, he believed that the defense is a kind
of contracts with dealing with business in civil law.9
On account of the reliant relationship with concluded or legal, the
defender must respect the leading role of his party, acting as the
collaborationist of his party. Relative to his party, the defense counsel
himself is in the status of minor role because his main task is that he offers
the one-sided guarantee for the defendant’s interests from the point of legal
and evidence and procedure and so on, the accomplishment of mission
grounds on the party’s consent, so the defender cannot offend against his
party’s volition at will without reasons. In the whole proceeding course,
8
See annotation 4, Wu Junyi
[German] Cross · Roceson: Criminal Procedure Law, Wu Liqi translation, Law Press China, 2003,
P149.
9
7
because of the contract or law the ethic duty undertaken by the defense
counsel to his party is in the first place, the other legal liabilities limiting
the duty with possible is in the next place.
iv. Division of Industry: The Defense Counsel’s Social Foundation
In the modern society, in view of the common legal attainment and
belief and career intention, the judge and the prosecutor and the lawyer
organize the legal profession community, who jointly undertake the
mission to safeguard the social justice. However, which kind of ways they
choose to safeguard the social justice? We should see that there are the
corresponding differences in their ways with “transforming justice”
because of the different function in the litigation. In generally, it is no
doubt that the judge on the status of judicator is the justice soul accepted,
who safeguard the justice by the fair adjudication; the prosecutor defends
tenaciously the benefit of the country and society and accomplish the
justice by prosecuting; the lawyer, as a “ be out of office judge”, achieves
the social justice by safeguarding the legal interests of the party he served.
The Japanese scholar believes:“ the defenders is the protector safeguarding
the defendant’s (suspects) legitimate interests, undertaking the duty
assisting the criminal judicial work.”10
Therefore, to the defense counsel, the achievement of social justice can be
understood from the following implications: firstly, the party’s lawful rights and
interests he safeguarded is also an organic part of the justice; secondly, the lawyer
achieving the justice is the dynamic balanced process, when the country prosecutes
the defendant, the professional group helping the defendant to defend is permitted to
exist, which embodies the respect to the individual’s dignity, meanwhile, which is
also the basic element in the social justice; thirdly, the lawyer must comply with the
legal stipulation and professional ethics and trade discipline in the process of practice
of advocacy.
However, in the Chinese criminal judicial practice, there is a serious
10
[Japan] “The Defender’s Status and Power”, Jurisprudentia Translated Library1980, NO.4
8
deviation on the recognition to this problem, it is seems that the lawyer can
has independent just attitude beyond the party’s interests, the people think
that if the defense counsel is not confined as the party’s expression of
intention he will maintain the social justice. Under this kind of recognition,
to safeguard the social justice is isolated from the party’s rights with
consciousness or unconsciousness. It is no wonder that the defense counsel
is required to develop some business not matching with his part, for
instance, some people believe that the defense counsel supports the villain
if he defend for the defendant who was accused of the most heinous guilt;
some people prospect that the defense counsel help the prosecuting party to
expound and prove the reasonable accusation; the other people refuse to
introduce the rule of the privilege with the lawyer rejecting bearing witness.
If we grant the mission with the lawyer achieving the social justice, the
bounds won’t be existed between the lawyer and the prosecutor and the
judge even the police, what is the lawyer trade existence?
III. Establishing The System to Maintain The Relationship
between The Defense Counsel and The Party
By above analyzing, there is the connection not to be cut off between
the defense counsel and the party served, to maintain the relation of both
sides should be the important content in the defense system. Therefore, it is
very necessary to make the following rebuilding and reflection of the
system.
i. Safeguard The Defense Counsel’s Right to Meet Suspects
The lawyer’s meeting right is that the defense counsel possesses a
kind of litigant rights under law in criminal proceedings, which the defense
counsel can meet with the person prosecuted, interchange the information
of the case and legal, communicate the defense idea, give the legal help
and defense for the defendant. This right exterior is the legal litigious right
9
with the defense counsel performing the defense function, in fact, it has a
two-way characteristic, which the meeting right of the person prosecuted to
the lawyer is also the most fundamental litigious rights of the person
prosecuted. From this point, the most of the every country’s law establishes
the specific meeting procedure to safeguard the achievement of the
meeting right of the suspected criminal and the defendant and the defense
counsel, such as, the meeting frequency and time accident have not been
definitely stipulated; as long as the meeting content is related to the
criminal proceedings, as a rule, the law will not limit, not only that, the
meeting between the suspected criminal, the defendant and the defense
counsel usually should be kept secret and not be monitored. The stipulation
of UN The Fundamental Principles with The Lawyer’s Role is as the
following: “The person with arrest, detention and prison can connect and
consult with the lawyer within the bound which the law enforcement
officers can see but not to hear.” However, the Article 96 of our country’s
criminal procedure law: “When the lawyer meet with the suspected
criminal, the investigatory apparatus can appoint the person on the spot
according to the case and requirement. To the case involving the country’s
secret, if the lawyer want to meet with the crime suspect in prison, he
should be authorized by the investigatiory apparatus.” Clearly, the lawyer’s
meeting right to the crime suspect is stipulated by law, at the same time,
the investigatory apparatus has been endowed with the unequal present
privilege, the dual authorizing privilege with engaging the lawyer and
meeting with the lawyer of the cases involving the country’s secret, and the
arranging privilege with the lawyer’s meeting. The invesitgatory
apparatus’s present privilege usually results to the high mental pressure of
the crime suspect so that the suspect cannot communicate smoothly with
the defense counsel; the authorizing privilege of meeting to the case
involving the country’s secret has been become the excuse which the
investigatory apparatus and the prosecuting officials refuse to arrange the
meeting; even if permitting to meet, the investigatory apparatus and the
10
prosecuting officials also set up a variety of obstruction in the meeting time,
frequency and the conversational content. In a word, in the investigating
stage with the shortage of neutral judicial officials interposing, the
investigatory apparatus and the prosecuting officials control the exercising
of the lawyer’s meeting right, all kinds of unnecessary obstruction make
the limited meeting right exist in name only.
ii. The Privilege of The Defense Counsel Rejecting Bearing
Witness and Establishment of the Right to Exemption
We have to grant that the criminal procedure is a combinative system
with multiple values in itself. It not only safeguards to find out the sober
truth of the cases and achieve to investigate the defendants’ criminal
responsibility, in addition to satisfying with this value, the criminal
procedure should also have the independent values in itself to ensure the
justice, soundness and humanity of the litigation; the procedure, as the
social subsystem, should harmonize the value confliction between the
criminal procedure and the other social activity when conducting the
criminal proceedings.
On the foundation of the multiple value view, when the value of
entity with finding out the sober truth conflicts with the other value, we
should take achievement of the other value into account and give up the
pursuit of the sober truth. The witness exemption privilege is the
production of this value view, as the American scholar Gone · R· Woltez
pointed: “ the basic reason of the exemption privilege existence is that the
society hopes to keep secret to promote a certain relationship. The society
emphasizes the certain relationship to the utmost, which would rather
protect to keep the nature of secret than lose the important information
with regarding to the result of the case at all costs.”11
11
[America] Gone·R·Wolerz: A Complete Collection of Criminal Evidence, He Jiahong, translation,
Chinese People’s Public Security University Press, 1993, P283-284.
11
As mentioned above, the existence of the lawyer’s trade founds on the
reliance and corporation with the lawyer to the persons he served. If the
lawyer becomes the witness charging the person he served in order to find
out the sober truth, the reliance and corporation must be nothing left. A lot
of thorns must break out on the way of existing and development of the
trade. Therefore, the defense counsel’s privilege with rejecting bearing
witness is established in criminal proceedings, the defense counsel
possesses the right, which is stipulated, to reject bearing witness because of
keeping secret in criminal proceedings, which is beneficial to maintaining
the reliant relationship between the lawyer and the party without doubt and
ensuring the defense right of the suspected criminal and defendant, who are
the inferior in the procedure, to be accomplished ultimately.
The lawyer’s criminal exemption right which is contacted tightly
with the privilege rejecting bearing witness is not only the guarantee to the
lawyer’s defense responsibility, but also the important defense measure of
litigation to ensure the defense counsel to expound and prove the
reasonableness of the prosecuting party exempting from the outside force.
The meaning of the lawyer’s criminal exemption right is that under law the
lawyer’s duty conduct cannot be investigated on law when the lawyer is
carrying out the criminal defense for the criminal cases. The privilege is
beneficial to preventing the lawyer from beat and persecution result from
the opposite party utilizing judicial power in order to make the lawyer get
out the worry which he may be investigated in civil or criminal liability,
and then the lawyer can address his defense opinion boldly to achieve
litigant antagonism and procedural fair, thus the defendant’s lawful rights
and interests can be safeguarded efficiently. However, at present, the
lawyer’s exemption right is not been established in the law of advocate and
the procedure law in our country, on the contrary, the Article 306 of
Criminal Law is like the sword of Damocles, which can make the lawyer
go into the prison at any moment. In addition, in the criminal defense, the
lawyer especially worries about the professional persecution resulted from
12
the opposite party making use of the power in hand after he competed
violently with the prosecuting party in court. To this point, we can see
segment of a whole from the following table.
The Case Statistic of The Lawyers Imposed with The Forced
Measures and Involving Committed Crimes in Practicing Law12
(according to the Safeguarding Rights Case Statistics of All
China Lawyer Association)
Year
The
Crime of
Crime
Crime
Crime
Crime
Tort
Crimes
Crime of
defender’
harboring
corruptio
of
of
of
affecting
of
betraying
s
criminals,
n
fraud
duty
false
reputation
evadin
state
Crime of
seize
charge
g taxes
secrets
interferin
irregularities
d
g
for favoritism
crime
of
with
evidence
of
Crime of asleep
at the switch
and
crime of
perjury
1997
7
6
1998
6
1
3
1999
3
1
1
2000
4
2
1
2001
7
1
2
Total
27
6
4
8
1
1
1
1
1
1
2
22
1
1
2
2
2
The judicial departments prosecute illegally to the lawyers because of
the shortage of the lawyer’s exemption right, whose unspoken words is that
Zhang Weiwei: “ The Problem with The Chinese Lawyers’ Criminal Liability: Researching of
Comparison and Demonstration”, Zhejiang Periodical NO.2, 2004.
12
13
they hold down the defense party who should be acted according to the
prosecution, which not only issues in making the criminal defense become
the lawyer’s dangerous road and the defense function seriously wither, but
also makes the vulnerable persons prosecuted not be stand a single blow in
fundamental.
iii. Extension of The Lawyer’s Defense Means
The existence of the lawyer’s defense right is attached to the defense
right of the person prosecuted, moreover, the former is the means and road
of the latter, the accomplishment of the latter depends on the fulfillment of
the former. From this sense, the defender is closely related to the party’s
right, to guarantee the defender’s right in the legislation and jurisdiction of
a country usually reflected the condition with the defendant’s right
safeguarded. In fact, whether the defender is endowed with all kinds of
litigious rights is reflecting fundamentally whether the defendant is
provided with the defense means, because whether the defense is
successful brings by far greater influences to the interests of the person
prosecuted than to the profit of the defense counsel. With regard to the
criminal proceedings practice of our country, the defense counsel’s defense
means needs strengthening, and then the “equal antagonism” in essence
can be achieved. The author only elaborates in detail the perfection of the
right reading and investigating and obtaining evidence, which is related to
the possession of case information in here.
In order to safeguard the equilibrium in the possession of case
information, the Continental Law Legal Chain countries generally
authorized the defense counsel the reading right matching with the system
of the files transformed; the Anglo-American countries established the
discovery system on the basis of the indictment. The litigant mode with
adversary system was carried out in the criminal procedure law of our
country in 1996, which abolished the system with the files transformed and
14
taken the system with the copy transformed, but the discovery system was
not established, therefore, the scope of reading files of the defense party
has been limited in a large degree. What’s more, because the provisions are
very dim in the criminal procedure law, which the defense counsel can
looking at the files in the stage of investigation and indictment and trial in
court, some the materially files usually cannot be read in the field of vision
of the defense counsel, which limits the possession of the defense party to
the case information and makes the defense function not advocate the
public prosecution so that the trial in court going through the motions is
inevitable.
In addition to the reading right, it is no doubt that the defense counsel’s right
investigating and obtaining evidence can help them to oppose the indictment,
however, the defense counsel is limitedly endowed with this right by the criminal
procedure law of our country, and the right is lack of the system to safeguard. On the
stage of investigation, the lawyer engaged by the suspected criminal has not the right
investigating and expounding evidence, only from the stage of investigation and
indictment he has the right, however, whether expound evidence by himself or apply
for the investigating to expound evidence depends on the will of the related
participant in criminal proceeding or the prosecutor’s office and the court’s “liberal
adjudication” in a sense, which is lack of force and the remedy means, the defense
counsel’s right investigating and expounding right usually has been fallen low to the
dot of the litigation democratization, which is existing in name only.
In a word, the right reading and investigating and expounding evidence, as the
extension with the right by which the person prosecuted obtains the case information,
must be more strengthened. Especially, it’s important that the certain litigant
guarantee must be offered and the discovery system should be established urgently;
meanwhile, the whole and reasonable guarantee system covering the procedure and
element and remedy means of investigating and expounding evidence must be
formed.
iv. The Reforming the Establishment of the Criminal Court
15
Structure
Although the establishment of the court structure has been known
very well by the people participating or not participating in jurisdiction, it
is usually paid more attention to. The common people believe that the
establishment of the court structure has only the meaning of the semiology
and aesthetics, in fact, the court structure not only embodies the technical
reason but also includes the valuable reason, in particular the value of
procedure itself. The modern judicial outlook, such as the equity between
the prosecuting party and the defense party, the trial neutral, has been
reflecting in the establishment of the court structure. The defense counsel
and the defendant are the participants in criminal proceeding as the defense
party, the establishment of the court structure of every country has been
surveyed from the point of their status relationship, it’s clear to see that the
legal relationship between the defender and the defendant and their
respective proceeding status. The diagrammatic sketch of England,
America, Germany, France and our country is the following:
The Diagrammatic Sketch of American Criminal Division Structure
Judge
Clerk
Defense
Counsel
Witness
Jury
Defendant
Public
Prosecutor
16
The Diagrammatic Sketch of English Criminal Division Structure
Judge
Clerk
Witness
Jury
Defendant
Prosecutor
Defense Counsel
The Diagrammatic Sketch of Felony Division in France
Prosecutor
Judge and Juror
Clerk
Lawyer
Defendan
t
Injured
Person
Witness
Witness
17
Defens
e
Counsel
The Diagrammatic Sketch of Criminal Division in Germany
Judge and Juror
Clerk
Defens
e
Couns
el
Witness
Prosecuto
r
Defendant
The Diagrammatic
Sketch of Chinese Criminal Division
Judge and Juror
Clerk
Defense
Counsel
Prosecutor
Witness
Victim
Defendant
18
From the above diagrammatic sketch, we can find out that the
England, America, France and German have not separated the defense
party from the defendant party although the establishment of their criminal
division has a lot differences, which is taken as the whole body to build up
(the defendant is before the defense counsel), this arrangement is beneficial
to communicating between the defender and the defendant and promoting
the development of defense function. Furthermore, from the defendant’s
litigant status, the establishment also avoids viewing it as the object
prosecuted. Compared with them, the defendant is separated from the
defender in the establishment of Chinese criminal division structure, who
is on the status accepting the trial. We can say that the establishment of the
court liking the umbrella neglects the whole of the defense party, which is
not beneficial to making the defense counsel provide the direction and
consultant for the defendant in court, as a result, it is certain that the
defendant is on the status of litigant object without help.
Whether stand out the defendant’s status of litigant subject or the
outlook of equity between the prosecuting party and the defense party, or
build the closer relations between the two sides, from the point of
safeguarding the achievement of defense right, the court structure of our
country should be reformed. The author believes that it is appropriate to
reference to the Germany division structure because the jury system is not
adopted in our country, meanwhile, our divisions are not divided into the
felony and the minor offence division.
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