Article 2 of the Measures for the Pilot Work of Full Coverage of Counsel's Defense in Criminal Cases(hereinafter referred to as"the Pilot Measures")provides for the specific content of full coverage of counsel's defense,both in terms of a reiteration of the Criminal Procedure Law on entrusted defense,defense by legal aid,as well as instruction on assigning defense counsels or on-duty counsel's legal assistance to those who do not have a defense counsel accordingly.Based on the theory of legal normative mimesis,the normative nature of article 2,paragraphs 2,3,and 4 of the Pilot Measures is a mimesis provision,which makes it possible for the defense of other defenders and the legal assistance of duty counsels,to be regarded as counsel's defense.Full coverage of the counsel's defense means that the prosecuted person is legally entitled to the counsel's defense,the defense of other counsels,or the legal assistance of a duty counsel,which is a legal provision,not a concrete fact.Pilot projects for full defense coverage are also subject to the Criminal Procedure Law,and judicial practice that respects the right of the accused to refuse to defend himself enables full defense coverage that does not necessarily correspond to a 100 percent rate of defense by counsels.Empirical evidence has shown that the full coverage pilot has significantly increased the rate of counsel's defense in criminal cases,particularly that the rate of counsel's defense in criminal cases has increased mainly due to the provision on designated defense cases.However,the pilot also faced difficulties,including a small caseload of summary and expedited cases,inadequate implementation of the safeguard obligation by specialized authorities,limited increase in the rate of legal assistance by duty counsel due to waiver of rights,and the significantly weaker performance of designated defense counsel than entrusted defense counsel in the fields of burden of proof,defense advice,adoption of defense advice,and defense of conviction and sentencing,with a gap between the effectiveness of duty counsel's legal assistance and that of effective legal assistance.The full coverage of counsel's defense should be reformed and improved in four directions.First,the scope of applying designated defense should be optimized.In addition to considering due process factors such as trial procedures,the design of standards for applying designated defense should also consider sentencing factors,including the sentence handed down in the case.As a minimum international criminal justice norm,the right of the accused to effective legal assistance works at all stages of criminal proceedings,and the pilot phase of full coverage of counsel's defense could,therefore,be moved forward to the investigative stage.Secondly,to ensure that the obligation to notify legal assistance is fully complied with.The meaning of the legal assistance provision should be understood as meaning that the defendant does not have to go through the application process to obtain legal assistance and that the court has an obligation to take the initiative to notify the duty counsel of the legal assistance provided in a summary and expeditious trial case where there is no defense unless he or she refuses the legal assistance.How rights are communicated should be easy to understand,and explanations of the meaning of legal provisions should be complete and adequate.Thirdly,the quality standards for defense by assigned counsel should be improved.The quality standards of assigned counsel in procedural defense should be raised appropriately.Fourthly,the criteria for determining effective legal assistance should be clarified.Effective legal assistance can be used as a bottom-line standard for legal assistance by duty counsel in the pilot project,and the criteria for its determination should be made clear.
full coverage of counsel's defenseregulation of legal mimesisduty counseleffective legal assistance
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