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THE ROLE OF THE DEFENSE IN CRIMINAL PROCEEDINGS IN CHINA

THE ROLE OF THE DEFENSE IN CRIMINAL PROCEEDINGS IN CHINA


Zhou Mi and Li Hanjun


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 Contents
 Ⅰ.Defense:A constitutional law principle in criminal proceedings520
 Ⅱ.More opportunities for criminal suspects and defendants521
 Ⅲ.The broadened rights and enhanced status of defenders522
 Ⅳ.Special legal protection for the right of defense523
 China is one of four countries with the most ancient civilizations in the world.It has a brilliant history with which the record of legal culture began four thousand years ago.The thought‘to punish expecting no punishment’ is accepted broadly by people in different countries,and is still noted for its clarity and insight.
 Early in the beginning of the West Zhou period (11th Century B.C.),it was prescribed that a case must be judged while the both sides of litigation attend the trial,and a judge must listen to different statements of the parties.This means that,as a principle,a judge must make the decision of conviction and punishment based on the statements and opinions of the both parties to the litigation.During the late Spring and Autumn Period (770 B.C.-476 B.C.),there was a famous professional defender Deng Xi (545 B.C.-501 B.C.),who is regarded as a pioneering“lawyer”in China.He was an expert in “using statements with various interpretations and words of boundless meaning”,and“there were countless people who learned the skills of pleading from him”. Unfortunately,this kind of creative undertaking did not continue into the following feudal era. During the Tang Dynasty,which was the most prosperous Chinese feudal era,the principle of hearing cases was set up legally:“Listen to both sides and you will be enlightened;heed only one side and you will be benighted.” This principle clearly shows the theoretical value and practical meaning of defense in criminal proceedingshBut this did not lead the establishment of a defense system,because it was just a principle for judges to hear the statements and opinions from both parties to the litigation for reference.At the beginning of this century,the Qing Empire started to offer professional lawyers and established a defense system based on the original “arguance”rule for litigation in court,as a part of the reform of the legal system to urge the imperialist foreign countries abandon their consular jurisdiction in China.A minister of the Qing,Shen Jiaben (1840-1913) wrote in his memorial to the Emperor:“When facing the court,people can not always find the right words because they are nervous,so they need lawyers to act on their behalf during questioning,arguing and interrogation.” .From then on,the modern defense system in China for criminal proceedings was finally established and began to develop and improve step by step from then on.


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