Research On Procedural Rights Of Defence Attorneys

This thesis is a study of the procedural rights of lawyer, beginning with the profession of lawyer, then talking about how to enlarge and improve the procedural rights of defence attorneys, and last explaining how to guarantee the procedural rights of defence attorneys. This thesis is composed of three parts: Preface, text and the Concluding. The text consists of three parts and ten chapters; there are the section of general Introduction, the section of Rights, and the section of Guarantee.The first section is Introduction, which generalizes the whole text. There are three chapters under this section: Chapter One is the Profession of Lawyer, which consists of three parts including the nature of the profession of lawyer, the orientation of the profession of lawyer, and the function of the profession of lawyer. These three parts closely connect with each other. If the nature of the orientation of lawyer is not clear, the function of lawyer will surely be affected and handicapped, which will further infringe the power and rights of lawyer. Chapter Two is the Rights of Lawyer. Three issues are discussed under this part: firstly, I will explain the keynote of lawyer's rights, which is that the significance and value of lawyer's rights rests in "rights restricting power", "rights protecting rights", and "rights restricting rights". Secondly, I will clarify which are the inherent rights of lawyer, while which are given rights of lawyer. Thirdly, I will explain the relationship between the defense rights of defendant and the procedural rights of defence attorneys, that the procedural rights of defence attorneys are in fact the extended part of the defense rights of defendant, and that the final purpose of granting defence attorneys procedural rights is for the better protection of the legal rights of defendant and for realization of the defense rights that the constitution grants defendant. Chapter Three is the status of lawyer in criminal procedural. There are three issues discussed in this chapter: whether lawyer is independent litigant, the status of lawyer in the stage of investigation, and the relationship among lawyer, defendant, public prosecutor and the judge. The purpose of this chapter is to explain the relationship between the status of lawyer in criminal procedural and the procedural rights of lawyer, which is what kind of status or position lawyer has in criminal procedural determines what kind of procedural rights defence attorneys can enjoy.The second section is the procedural rights of defence attorneys, which is the core of this thesis. There are also three chapters in this section. Chapter Four is the present situation of defence attorneys' procedural rights. The method of demonstration is applied in this chapter. Through listing a series of research statistics, cases and talks with lawyer, I summarize that there are "Ten Problems" for defence attorneys in criminal procedural, and analyze from different point of view the cause of the above problems as well as the harmful consequences to the development of the profession of lawyer. Chapter Five is the improvement of the procedural rights of defence attorneys, which consists of the improvement of the following eight rights: the rights of inter-review and corresponding, the rights of reading the document and records, the rights of investigation and collecting the evidence, the rights of objection in case ofimproper detention, the rights of appealing, the rights of refusing to defense, the rights of inquiring and the rights of applying for delaying the hearing. This chapter analyzes laws, rules and judicial interpretation and compares foreign laws and particular situation in China, to explain how to improve the defects existing in the above rights and solve the problems in actual practice. Chapter Six is the enlargement of the procedural rights of defence attorneys, which discusses several procedural rights of defence attorneys that should be added, including the defense rights, the rights of being present, and the rights of objection to the jurisdiction of inves...