First, the meaning of criminal legal aid (a) the requirements of procedural justice. "Everyone is equal before the law" is one of the principles of rule of law. In China's criminal proceedings, the law stipulates that everyone has the right to entrust or hire a lawyer to provide legal assistance. As a very commercialized profession, lawyers provide legal services to clients, and clients pay corresponding fees, which is a great source for lawyers to maintain their lives. However, not all parties in criminal proceedings have the ability to hire lawyers, which may lead to different rights before the law due to different property conditions, thus making the principle of "everyone is equal before the law" a bubble. "Compared with the referee function, the formal equality of litigation rights between the prosecution and the defense is necessary to maintain the balance of litigation structure and ensure the fairness of litigation." In order to realize the minimum principle of justice, avoid the unfair treatment that the parties may receive due to lack of money in court trials, and also realize "visible justice" and "visible justice", the criminal legal aid system came into being. (two) to achieve "balance between prosecution and defense, equal armed". In the narrow sense of criminal proceedings, because the party exercising the right of prosecution is a state organ with all necessary means backed by the state coercive force, the accused is often in the position of the accused, and its position is obviously different from that of the state organ exercising the right of prosecution. In the pre-trial stage of criminal proceedings in a broad sense, the defendant is often in custody, and the disparity in status and strength between the prosecution and the defense is obvious. Therefore, in order to protect human rights and ensure the full realization of the principle of participation in litigation, the criminal legal aid system is needed in both the trial stage and the pre-trial stage. (3) Protecting the rights of victims. In the past, when talking about criminal legal aid, we naturally thought that the object belonged to the criminal suspect, while the victim seemed to be far from this category. When some scholars define criminal legal aid, they think: "Criminal legal aid refers to a legal system in which the court appoints practicing lawyers to provide criminal defense and assistance to criminal defendants who are unable to pay litigation fees due to financial difficulties or in specific cases. Due to the concept of fairness and justice, providing legal aid to victims also has a moral justification. Therefore, protecting the rights of victims should be one of the theoretical bases of criminal legal aid. Second, the status quo of China's criminal legal aid system (1). On 1994, China began to propose the establishment of a legal aid system. Reflected in the criminal procedure law promulgated by 1996. Article 34 stipulates: (1) If the defendant fails to entrust a defender due to financial difficulties or other reasons, the people's court may appoint a lawyer who undertakes the obligation of legal aid to defend him. (2) If the defendant is blind, deaf, dumb or a minor and has not entrusted a defender, the people's court shall appoint a lawyer who undertakes the obligation of legal aid to defend him. (3) If the defendant may be sentenced to death without entrusting a defender, the people's court shall appoint a lawyer who undertakes the obligation of legal aid to defend him. " It can be seen that the criminal legal aid system stipulated in China's criminal procedure law adopts the way of designated defense. The first paragraph of this article is actually a kind of "arbitrarily appointed defense", and the court has discretion in the choice of appointed defense. It is the obligation of the court to appoint a defense as stipulated in paragraphs 2 and 3. If the court fails to fulfill this obligation, its litigation behavior will lose its procedural legitimacy, and the judgment made may be deemed invalid by the higher court because of the appeal of the parties and the protest of the procuratorate. This defense is the so-called "necessary designation defense". Article 37 of the Supreme People's Court's Interpretation on Several Issues Concerning the Implementation of the Criminal Procedure Law of People's Republic of China (PRC) stipulates: "If the defendant has not entrusted a defender, the people's court may appoint a defender for him in any of the following circumstances: (1) It meets the standards of economic difficulties stipulated by the local government; (two) I really have no source of income, family economic situation can not be ascertained; (three) I really have no financial resources, and my family members are still unwilling to bear the expenses of defense lawyers after repeated persuasion; (4) In the same criminal case, other defendants have entrusted defenders; (5) Having foreign nationality; (6) Cases with significant social impact; (7) The people's court considers that the procuratorial opinions and the obtained case evidence materials may affect the correct conviction and sentencing. " Article 4 1 of China's Lawyers Law stipulates that citizens who need legal aid in terms of maintenance, work-related injuries, criminal proceedings, claims for state compensation, and claims for pensions according to law, but are unable to pay legal fees, can obtain legal aid in accordance with state regulations. Article 42 stipulates that lawyers must undertake legal aid obligations in accordance with state regulations, perform their duties and provide legal services to recipients. On July 2, 2003 1 day, the State Council promulgated the Legal Aid Ordinance, which was implemented on September 20031day. It is the only administrative regulation in China that specifically stipulates the legal aid system. Article 1 1 stipulates: "In criminal proceedings, a citizen may apply to a legal aid institution for legal aid under any of the following circumstances: (1) A criminal suspect fails to entrust an agent ad litem due to financial difficulties after being interrogated for the first time by the investigation organ or from the date when compulsory measures are taken; (2) The victim of a public prosecution case and his legal representative have not entrusted an agent ad litem due to financial difficulties since the date when the case was transferred for examination and prosecution; (3) Since the case of private prosecution was accepted by the people's court, the private prosecutor and his legal representative have not entrusted an agent ad litem due to financial difficulties. " Article 12 stipulates: "In a case where a public prosecutor appears in court for public prosecution, the defendant fails to entrust a defender due to financial difficulties or other reasons. If the people's court appoints a defender for the defendant, the legal aid institution shall provide legal aid. If the defendant is blind, deaf, dumb or a minor and has not entrusted a defender, or if the defendant may be sentenced to death and has not entrusted a defender, when the people's court appoints a defense for the defendant, the legal aid institution shall provide legal aid without examining the financial situation of the defendant. " (2) Practices and shortcomings in practice. Since 1992, the first legal aid organization in China, Wuhan University Protection Center for the Rights and Interests of the Weak, criminal legal aid in the modern sense has gradually developed in China. With the promulgation of a series of laws and regulations, the construction of legal aid institutions has been rapidly carried out in various parts of the country in accordance with the administrative system, initially forming a legal aid center or law firm to make independent decisions; The voluntary assistance of lawyers is the main one, supplemented by appropriate economic compensation from the government; A criminal legal aid system that focuses on the trial stage and is supplemented by other litigation stages. However, due to the late start of all the work, there are still many problems. The outstanding performance is: 1, and the legal aid method is single. Looking at the current criminal legal aid system in China, there are two ways of assistance: court-appointed defense lawyer assistance and assistance provided at the request of the parties. Moreover, when providing assistance at the request of the parties, review is generally needed. There is no difference between the pre-trial stage and the trial stage of legal aid, but it is generally stipulated that assistance can be provided to the recipient. 2. The scope of legal aid practitioners is limited to lawyers. In practice, the subject of criminal legal aid is often limited to lawyers. Moreover, China's Lawyers Law holds that it is the duty of lawyers to carry out legal aid work, and the consequences of lawyers' failure to perform their duties are quite strict. The purpose of this is to ensure the quality of the case. However, it cannot be ignored that this has greatly affected the enthusiasm of lawyers in legal aid work. In fact, according to the Legal Aid Ordinance, legal aid is the responsibility of the government, and lawyers are the main body of legal aid. In addition, due to China's vast territory, unbalanced economic development and uneven distribution of lawyers, some local lawyers are often exhausted and thankless when performing legal aid work. 3. The scope of assistance is very narrow. Although China's criminal procedure law, lawyer law and legal aid regulations have made specific provisions on the object of criminal legal aid, the object of assistance has expanded from the defendant in the past to the criminal suspect, defendant, private prosecutor and victim. However, compared with the regulations of western developed countries, China strictly limits the target of assistance to "economic difficulties" and several special groups, which is obviously too narrow. 4. Pay attention to the help of criminal defendants in the trial stage, and ignore the help of criminal suspects in the pre-trial stage. Article 1 1 of the Regulations on Legal Aid stipulates that a criminal suspect has the right to be assisted by a lawyer at the pretrial stage. However, in practice, people often attach importance to helping criminal defendants at the trial stage. If the requirements of designated defense are met, the court will take the initiative to designate a defense for the defendant. However, it seems that the suspects in the pre-trial stage are not so lucky. According to the provisions of the current law, investigation organs and procuratorial organs have no obligation to request legal aid for criminal suspects. Moreover, in practice, many obstacles are often set up for criminal suspects to request legal aid on the grounds that investigation involves investigation secrets, and helpers also ignore or are unwilling to help them. How difficult it is for criminal suspects to get powerful legal aid. It can be seen that the significance of criminal legal aid lies in providing certain legal aid to those who cannot afford to hire lawyers themselves, or helping them tide over legal difficulties. Moreover, it should be noted that the scope of assistance is very small, because China's provisions are limited to economic difficulties and several special circumstances, so if you need legal aid, you must first look at whether you are qualified.