On Protection Of Right To Counsel Of The Accused In Chinese Constitutional Law

The conflict and confrontation with the accused and the government in criminal procedure reflect distinctly the strained relations with the individual rights and the national power in the constitutional framework. The natural tight relationship between the criminal procedure law and the constitutional law decides that we must concern the constitutional law when we research the criminal procedure law, which is the reason we call the criminal procedure law is application of constitutional law, constitutional criminal procedure law, or ride device of the constitutional law. As the most fundamental right of the accused in the criminal procedure, the right to counsel is the right to relate to property, freedom and life, and the core of the system of the litigation rights, which determines the ability to exercise other rights of the accused. Criminal procedure evolutionary history is the history of highlight and the development of the right to counsel, and the lawyer counsel is the symbol of the dividing line of traditional and modern criminal procedure. Therefore most countries'constitution and international human rights conventions protect the right to counsel as the fundamental right.But in China, in practice, on the one hand, there are the general deprivation of the lawyer's right to meet the accused in Criminal procedure; There are the ignore of self-defense of the accused, limitations and even deprivations of lawyer's rights, the blindness of lawyer's reasonable opinion in plenty of unjust cases; There are more lawyers to be guilty because of Article 306 in the Criminal Procedure Law, which becomes the dharma Chris Sword suspended on the lawyer's head, and lead to the lawyer skating on thin ice, can't do utmost to provide effective defense for the accused. On the other hand, there are widespread unclear nature of Article 125 in Chinese Constitution, which causes the controversy whether the right to counsel is the fundamental right of the accused. So it can't provide correct value standard for criminal procedure legislation and judicature, and the relation between the criminal procedure law and the constitutional law was described by simplistic way: either based on the constitutional regulation, advocate the provisions of the criminal procedure law to fit the constitution, don't need to undertake reform agreement; or from the constitutional grounds, claim defective to amend the constitution, but lack of in-depth research. The tight relation between the criminal procedure law and the constitution, the importance of the right to counsel for the accused, and the protection of the right to counsel is not optimistic in China, especially the unclear orientation of the right to counsel in the constitution causes the deny of the nature of fundamental right,urge me to select the protection of the right to counsel of the accused in Chinese Constitution as the doctor's thesis theme.The article makes use of the methods of analyzing norm, methods of analyzing history, the methods of analyzing compare, and the methods of analyzing demonstration and case and so on. The article regards a series of cases and phenomena occur in recent years as a logical starting point, and analyzes Article 125 in Chinese Constitution"the accused has the right to counsel"the connotation, extension and theoretical basis, combines the protection situation of the right to counsel, analyzes the reason of allocation unbalance between the right to counsel and the national power in the criminal procedure, probes how to allocate rationally and the measures of the implementation protection of the right to counsel, achieves the purpose of protecting the right to counsel of the accused. The article is divided into five parts:The first part is about the right to counsel in Chinese Constitutional law, analyzes Article 125"the accused has the right to counsel"the connotation, extension and theoretical basis. This provision means the accused has the right to counsel, not the right to defense. This provision is not only the judicial principle but also the procedural fundamental right, defense is a rebuttal responsibility rather than proof responsibility, its essence is the defense right. The right to counsel is essentially citizen's fundamental right, citizen's fundamental right in the criminal procedure is specifed and implemented as form as the fundamental right of the accused. The accused is entitled to the right in the whole criminal procedure. Investigation phase is a mechanism of one side investigation and a linear structure, so often infringes the rights of the suspected, hence the right to counsel should allocate for the suspected in order to compete with the powerful investigation power. The core of the right to counsel is to gain the lawyer's effective counsel. Effective counsel's standards are complete and fully. Complete counsel means the accused is entitled to the right in the whole criminal procedure and can use the substantive defense and procedural defense. Full counsel means the accused should fully be guaranteed the exercise of the right, including obtaining rapid told right, giving lawyers'extensive rights, get a lawyer's counsel complete and equally, paying attention to the essence defense and protecting the lawful rights and interests of the accused. The constitution principle of human rights is the value foundation, the right to counsel of the accused existed or not and size are the basic criterions of measuring the human rights protection level. The rule of law is the institutional guarantee, the legitimate country under the due process provides system guarantee for the realization of the right. The principle of equality and personal dignity are the subjective foundation. Respecting human dignity requires treat the accused as a procedural subject and presumption of innocence; Equality principle requires equal treatment to the accused. Therefore, government should provide legal aid for the accused who can't employ the lawyer; the principle of equality also requires equal treatment for both of the accused and the accuse. In order to seek balance, the weak accused must be allocated the right to counsel. The law of the unity of opposites of Marxism-leninism MAO zedong thought in the constitution preface is the epistemological foundation, The judge finds out the truth of the case in the mutual exchange and debate of both of the accused and the accuse, and makes a fair judgment.The second part is about the protection situation of the right to counsel in the present legislation, cleaning up the historical evolution of the defense system, the lawyer system and legal aid system, examining the present situation of the criminal procedure law, the lawyers' law and legal aid regulation, basing on that, summarizing the achievements of the legislations and the implementation. Our country has formed relatively complete protection system for the right to counsel as the core of the criminal procedure law, the lawyers' law and legal aid regulation, reflecting the equal protection for the accused, the allocation of the right to counsel and the right to accuse is more rational, the right to counsel is developing to further restrict the right to accuse.The third part is about problems existing in the protection of the right to counsel. According to the standard of effective counsel in the constitution, this part analyzes the problems existing in the protection of the right to counsel. One problem is to violate the complete and fully counsel of the allocation of the right to counsel. The former imbodies the absence of the right to counsel in the phases of the investigation and the death penalty review procedure, absence of the procedural defense. The latter embodies that there is not the principle of presumption of innocence but limited principle in the criminal procedure law, the right to be told is not perfect, the difficulty of meeting, reading records,investigating the evidence cause the lawyer can't provide effective counsel for the accused, the legal aid is not fully, the absence of the right to confrontation increases the difficulty of the effective counsel, the legal mechanism of remedies and sanctions are not perfect. The second problem is article 306 in the criminal law has the negative influence for the protection of the right to counsel, such as this crime has the contradiction with the requirement of the constitution, this crime has the disadvantage of equal protection of the accused and the accuse, also has the disadvantage of protecting the rights of the lawyer and the accused. The third problem is the legislation of the right to counsel have conflict. Internal conflict of the criminal procedure law embodies the conflicts of internal investigation system, the investigation system and the prosecution system, the investigation system and the judicial system, internal judicial system. The conflict of the criminal procedure law and the lawyers'law embodies the conflict of the scope of reading records, meeting procedure, investigating procedure and the right of lawyer's professional immunity. The conflict of regulations embodies the conflict of the meeting procedure, which causes fragment in implementation.The forth part is about perfecting the legislation of the right to counsel according to the requirement in the constitution. Firstly analyzing the main reason causing the unbalance of the Faquan in the criminal procedure is the power-standard law philosophy, which mainly embodies the serious unbalance between the right to counsel and the right to accuse, imperfection of power distribution and restriction mechanism. Therefore, we should change the power-oriented Faquan structure, and establish the right of complete and fully counsel, including establishing the right to counsel in the phases of of the investigation and the death penalty review procedure, highlighting the procedural defense; making judgment for the constitutionality of article 306 in the criminal law by the revelant organ; expanding the scope of legal aid; perfecting the lawyer's a series of rights for the effective counsel; the adoption of the reasonable opinion. The coordination between the criminal procedure law and the lawyers'law embodies constitutionality explanation and favorable explanation for the accused, so the lawyers'law prevails. Rational configuration of national power in the criminal procedure mainly embodies comprehending the regulation"co- ordinate"from the ultimate sense, restricting the national power with the idea of the due process and the presumption of innocence, establishing the duty of the national power to protect the right to counsel ,and optimizing the allocation of the national power, which embodies perfecting the prosecutorial power as the core of legal supervision right, strengthening the restriction for the investigation power; Prosecutorial supervision of the judicial power must be comprehended from the perspective of constitution, which focused on general supervision, and doesn't conflict with establishing judgment neutral and judge authority.The fifth part is about the implementation protection of the right to counsel which should follow the path of the constitution. On the one hand, applying constitution interpretation to reshape"the accused has the right to counsel"connotation and denotation, and having no need of constitutional amendent. On the other hand, perfecting constitution supervision system on the basis of the system of people's congress.In China, the court has no right of constitution supervision, and can't apply the constitution.Examining legality mainly embodies to initiate keeping records system of judicial interpretation as soon as possible and establih procedural sanctions system in the criminal procedure; From the present situation, it is not suitable for establishing the system of ineffective counsel.