The defense system sprouted during the time of the ancient Roman Republic. At that time, in trial activities, due to the implementation of "first-class litigation", the defendant and the accuser enjoyed the same rights, and the court heard the "debate" of both parties when handling the case. Later, some people with certain legal knowledge, such as those who are called "protectors", "eloquents", and "debaters", gradually appeared in society, and they participated in the litigation to refute the unfounded accusations for the defendant and provide the defendant with some legal assistance, so that the court's judgment on the defendant became reasonable. The Law of the Twelve Tables stipulates the provisions for the defense of defenders in court, which can be said to be the earliest prototype of the defense system in human history. Its appearance not only met the needs of the legal system of the ancient Roman state, but also reflected the important achievements of the political struggle of the common people, and was also the concrete embodiment of the slave democracy system in criminal proceedings.
However, by the Middle Ages, the defense system was suppressed. In medieval Europe, an inquisitorial system was introduced. This feudal litigation model, in essence, contempts the basic rights of people, which is manifested in criminal proceedings, that is, depriving the defendant of almost all rights, placing him in the position of the object of litigation and the object of judicial disposition, and the judicial ** pursues the principle of presumption of guilt. Thus, criminal defendants had no real right to defend themselves in medieval Europe.
The system of defense in the modern sense of the West arose after the victory of the bourgeois revolution. After the success of the bourgeois revolution, Britain, France and other major capitalist countries affirmed the principle of debate in criminal procedure in their legislation, giving criminal defendants the right to defend themselves and to hire others to defend themselves. The first to stipulate the defendant's right to a defense was the English 1679 "Personal Insurance**", which clearly stipulates the principle of debate in litigation and recognizes the defendant's right to a defense, thus determining the subject status of the criminal defendant in criminal proceedings. The French Code of Criminal Procedure of 1808 made detailed and elaborate provisions on the defense system, making criminal defense more systematic and standardized, and thus had a significant impact on the criminal defense system of later countries.
After the Second World War, starting from the concept of protecting human rights, the defense system has been unprecedentedly developed, mainly in the following ways:
First, the time for the defender to intervene in the litigation is generally advanced to the investigation stage.
Second, many international conventions, such as the 1948 United Nations Universal Declaration of Human Rights, the 1966 United Nations International Covenant on Civil and Political Rights and the 1990 United Nations Basic Principles on the Role of Lawyers, have set out international norms for the criminal defence system.
Article 1 of the United Nations Basic Principles on the Role of Lawyers, adopted at the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, stipulates that "all persons have the right to request the assistance of a lawyer of their choice in the protection and establishment of their rights and in the defence of them at all stages of criminal proceedings." ”
Thirdly, legal aid systems have generally been established in various countries, i.e., free legal aid is provided to indigent defendants.
Fourth, lawyers' right to know is fully guaranteed, and many countries have established a discovery system to protect lawyers' right to know.
Fifthly, many States have strengthened the legal relationship between lawyers and their clients by granting them the privilege of refusing to testify on their business secrets.
During the period of slavery and feudalism in China, there was no criminal defense system in the real sense, and the defense system in the modern sense was imported and transplanted from the West in the late Qing Dynasty. The earliest legislative provision was the Qing Dynasty's 1910 draft of the Qing Dynasty Criminal and Civil Procedure Law (not published), which provided for the participation of lawyers in litigation and gave parties the right to hire lawyers to defend themselves. The separate provisions on lawyers began to appear in 1912 when Beiyang ** formulated the "Provisional Regulations for Lawyers" and the "Provisional Regulations for the Registration of Lawyers". The emergence of the two separate lawyer legislation was the beginning of China's lawyer system, and then the Kuomintang formulated and promulgated the "Lawyers' Charter" and the "Lawyers Law" in 1928 and 1941 respectively. On the whole, the defense system in old China was of positive significance, but due to various reasons, it was not implemented in criminal proceedings.
The establishment of China's socialist defense system has gone through a long and bumpy road of development. As early as the Second Civil Revolutionary War, Article 24 of the "Regulations on the Provisional Organization and Adjudication of the Judicial Department" promulgated by the Executive Committee of the Chinese Soviet Republic** stipulated: "The defendant may, for his own benefit, send a representative to appear in court to defend himself, subject to the permission of the court." "During the War of Resistance Against Japanese Aggression, all base areas promulgated laws and decrees on judicial organization and litigation procedures in accordance with the line, principles, and policies of the People's Republic of China and in light of local conditions, and established their own judicial organs. A system of open trials has been introduced in criminal proceedings. In a public trial, the permitted group may also send someone to assist in the defense of the lawsuit against its members.
The founding of the People's Republic of China marked the beginning of a period of socialist revolution and socialist construction in our country. At the same time as abolishing the pseudo-legal system, the party and the state began to systematically build a people's judicial system. The criminal defense system has also been developed on the basis of summing up the successful experience of the democratic revolution, and the establishment of a lawyer system is being considered. The first Constitution of the People's Republic of China in 1954 established "the right of the defendant to a defense" as a constitutional principle. In order to implement this constitutional principle, article 7 of the Organic Law of the People's Courts of 1954 stipulates that "the defendant has the right to a defense. In addition to exercising their right to defend themselves, the defendant may retain a lawyer to defend him, and may be introduced by a people's organization or a citizen with the permission of the people's court to defend him. When the people's court finds it necessary, it may also appoint a defender to defend him. These legal provisions show that in the early days of the founding of the People's Republic of China, a socialist defense system was already established. However, in the late 50s, due to the interference and influence of the "leftist" ideological line, the newly established defense system was seriously damaged, and by the time of the "Cultural Revolution" it had developed to the extreme, and the defense system basically died abruptly.
After the Third Plenary Session of the 11 th CPC Central Committee, the work of restoring and rebuilding the defense system began under the guidance of the principle of strengthening socialist democracy and the legal system. The Criminal Procedure Law of the People's Republic of China, adopted at the Second Session of the Fifth National People's Congress in July 1979, not only stipulates the defendant's right to a defense, but also establishes a lawyer defense system. On August 26, 1980, the 15th Session of the Standing Committee of the Fifth National People's Congress adopted the Interim Regulations of the People's Republic of China on Lawyers. The promulgation and implementation of these regulations has become an important milestone in the new period of China's lawyer defense system.
With the changes in the country's political and economic situation, the development of democracy and the legal system, the continuous deepening of reform and opening up, and the gradual accumulation of judicial practical experience, the Fourth Session of the Eighth National People's Congress on March 17, 1996 and the Fifth Session of the Eleventh National People's Congress on March 14, 2012 have made two major revisions to the Criminal Procedure Law of the People's Republic of China, of which the defense system is one of the key contents of the revision. Through these two revisions, the defense system has been reformed and improved in a major way, not only has the time for criminal suspects and defendants to entrust defense from the original trial stage to the investigation stage been advanced, but the procedural rights and professional guarantees of defenders in criminal proceedings have also been comprehensively expanded and guaranteed.
At the same time, on May 15, 1996, the 19th Session of the Standing Committee of the Eighth National People's Congress deliberated and adopted the "Lawyers Law of the People's Republic of China", confirming and consolidating the achievements of the reform of lawyers' work, regulating and guiding the healthy development of lawyers' careers, and giving play to the role of lawyers in political, economic and social life. On October 28, 2007, the 30th session of the Standing Committee of the Tenth National People's Congress made a comprehensive revision of the law, further expanding the rights of lawyers in criminal proceedings and regulating lawyers' professional conduct. The comprehensive revision and implementation of the Criminal Procedure Law of the People's Republic of China and the Lawyers Law of the People's Republic of China marks a new period of historical development for China's defense system. After the Fourth Plenary Session of the 18th CPC Central Committee, the state paid more attention to the defense system. In order to implement the spirit of the plenum, on September 20, 2015, the three departments of the People's Procuratorate and the People's Procuratorate issued the "Provisions on Protecting Lawyers' Practice Rights in Accordance with Law", which is of great significance for effectively protecting lawyers' practice rights, giving full play to lawyers' protection of the lawful rights and interests of their clients, maintaining the correct implementation of law, safeguarding social fairness and justice, and promoting judicial fairness.