The right to counsel and the effective assistance under Taiwan’s reformed adversarial system
|關鍵字:||改良式當事人進行主義;當事人武器對等;律師權;辯護人在場權;實質有效辯護;律師執業過失;right to a fair trial;right to counsel;effective assistance;malpractice|
To avoid the judges taking the roles of both the judge and the prosecutor inevitably in the old criminal procedure, Taiwan’s criminal procedure has transformed into reformed adversarial system in 2003. This new system clarifies the duties of the judge and the prosecutor respectively and has opened the door of fair trial. However, once the judge no longer takes the whole responsibility to dig out the fact under the new system, the parties will assume the responsibility instead, that is, the prosecutor and the defendant have to go all out to attack and defend for the fact-finding. In this condition, the attorney’s effective assistance becomes the crucial prerequisite to a fair trial because the attorney is the defendant’s sole weapon in the criminal procedure to fight off the prosecutor’s accusation against him. Since there is not much discussion nor much empirical research on this issue in Taiwan, whether the attorneys in Taiwan have fulfilled their responsibility to offer effective assistance to the defendants remains an question to be found out. This thesis therefore aims at observing the practices of Taiwan’s attorneys in criminal procedures by searching the judgments so as to see whether the defendants’ right to a fair trial has been achieved through the new system. To achieve the objective above, first, the thesis introduces the background of the reformed adversarial system and the defendant’s right to counsel by extracting and summarizing the textbooks, the articles, the thesis and the judgments of the U.S. Supreme Court. Second, this thesis presents the situations and points out the issues that the attorneys could not offer effective assistance to the defendants in the crucial stages, whether before trial or after trial, by searching the judgments of the Supreme Court of Taiwan and Taiwan High Court, and also by illustrating the viewpoints of the U.S. Supreme Court and related journals. Finally, in the event of the attorney’s malpractice, the thesis introduces the responsibilities the attorney may assume and the remedies the defendant may adopt so as to protect his own right and to improve the legal practice environment under the new reformed adversarial system.
|Appears in Collections:||Thesis|
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