Research On The Defense Lawyer's Rights During Pre-trial Investigation

As the threshold of criminal proceedings, the pre-trial investigation is undoubtedly the most intense conflict stage between power and rights. However, under the appearance of the conflict, it is the permanent tangles concerning how to balance power running and private rights safeguarding among the legislators, judicial personnel and theory researchers. If the conflict is treated as the natural character of the interaction between power and rights, there must be the value judgment to balance the adversarial relationship between them. Frankly speaking, the design of rational system is not simply value judgment, but being embedded in a country's political, economic system, cultural traditions, and many other factors, and meanwhile, being the dynamic generation process which keeps pace with the Times and is constantly open to foreign legislation and practice. It is no exception to improve the defense lawyer's rights during pre-trial investigation in China. The new highlights in the Criminal Procedure Law in 2012 is to clear the lawyer's “identity” as defense layer, but which doesn't realize the legal aims smoothly at practice. On the contrary,there are still many “old problems” left in the law. For example, whether the defense lawyer has the right to investigate, the legislative expression is in the “entangled state” of “negation at list” and “agreement by overview”, and the defense lawyer's rights of reading case files and presenting the interrogation process are still wandering outside the law. The procedural law is an applicable law. Limited by the double fetters of the rules themselves and operating environment, the defense lawyer's rights of the suspect at pre-trial investigation are at the risk of “systemic vase”. researching on defense lawyer's rights during pre-trial investigation undoubtedly has very important theoretical value and practical significance, in the context of putting the “respecting and safeguarding human rights” into the constitutional law and the criminal procedural law, causing more social attentions by focusing on the violation of suspects' legitimate rights and interests due to the feeble defense lawyer's rights of the suspect during pre-trial investigation, especially under the grand background of governing the country by law.In addition to the introduction and conclusion, this thesis consists of five chapters.The first chapter focuses on jurisprudence foundation of the defense layer's rights during pre-trial investigation, aiming at exploring the legitimacy foundation of the development of such rights. Among all the principles for developing and improving the lawyer's rights to defense during pre-trial investigation, the principle of presumption of innocence and the theory of procedural justice are of the most fundamental significance. The establishment of the principle of presumption of innocence is not to build up a new legal presumption rule in the whole criminal legal system, but to legally assume the criminal defendant as “innocent status” before the effective judgment by judge. Therefore, the principle of presumption of innocence makes the accusing party bear the strict burden of proof, and fully protects the defendant's lawsuit rights. Accordingly, the principle of presumption of innocence becomes the foundation of the rational rules of the defense lawyer's rights during pre-trial investigation, and provides the solid theoretical support for the development of the relevant matching system. In the process of separation of power, theory of procedural justice realizes the procedural justice of prosecution mode; In the course of the dynamic application, theory of procedural justice provides procedural guarantee for the realization of the defense lawyer's rights during pre-trial investigation and its matching system, and provides the social psychological identity for the verdict results.The second chapter studies the defense lawyer's meeting and communication rights during pre-trial investigation and its improvement, intending to probe into the most customary right and its practical effect, and putting forward the path of improvement. As for the issue of the defense lawyer's meeting and communication rights, the Criminal Procedure Law(2012) minimized the conflicts with the Lawyer Law, which affirms the defense lawyer's rights to meet suspect by “three certificates”, and regulates the “permission system for the meeting” for three kinds of special cases, taking into account the needs of criminal prosecution to distinguish the nature of the case and the particularity of the evidence collection. Moreover, viewed as the practice, the legislative regulation greatly improves the efficiency of meeting suspect for the defense lawyers in ordinary criminal cases. However, the legislation only focuses on solving the problem of defense lawyer's “meeting difficulty”, but ignores the suspect's rights to meet defense lawyer. While in the seemingly effective ordinary criminal cases, there are existing delay of realization and the rigidity of legislation. The decision power of “permission system for the meeting” gives to the investigation organ that desires to obtain accusing evidences by all means, while it is hard to get rid of the logical thinking of the“ power operates conveniently” for the investigation organ, and leads to the usual results of “not permit”. According to the current laws and regulations in China, the defense lawyer doesn't have rights to check the evidence with suspect during the pre-trial investigation, which undoubtedly weakens the actual effect of the meeting. In addition, the low defense rate seriously removes the grand aims of legislation and violates the legislation purpose of the defense lawyer's rights to meet during pre-trial investigation. Due to the deficiency of rights relief mechanism, it is still difficult to get rid of the fate of “spiritual solace” to the criminal suspect. Above all, it is necessary to further perfect the defense lawyer's meeting and communication rights during pre-trial investigation. In particular, we should reshape the defense lawyer's meeting and communication rights during pre-trial investigation around the suspects rights by making clear whom the rights belongs to. We should make sure the timeliness of the defense lawyer's meeting and communication rights during pre-trial investigation for the ordinary criminal cases. We should refine the operational standards of the “permission system for the meeting”. We should perfect relevant matching measures from the view of verifying the evidence. In terms of rights relief, we should strengthen the legal supervision responsibility of the prosecutor in the short term, and establish trusting principle and refine the adverse consequences of infringement to build up the corresponding mechanism of rights relief in the long run.The third chapter studies the defense lawyer's rights to investigate during pre-trial investigation and its improvement, aiming at revealing the essence and its realization. As for the defense lawyer's rights to investigate the evidence during pre-trial investigation, The Criminal Procedure Law(2012) presents a fuzzy answer, even at the expense of making the theoretical conflict between Article 36 of “omission” in list of contents and Article 40 of “informing obligation” of defense lawyer. Moreover, the subsequently issued judicial interpretation still carefully concealed the issue. Fuzzy legislation and judicial aversion also leads to different understandings, even completely contrary understandings between the theorists and practitioners according to their own needs. However, the author proposes that the defense lawyer's right to investigate during pre-trial investigation is only a kind of “qualification right” or “sub rights”. Especially in the existing judicial environment in China, even the legislation regulation is clear, it is still difficult to defense lawyers to investigate, and they feel reluctant to do it. There are mainly three problems for the theorists to be passionate about explicit legislation and practical appeal: First, they confuse the lawyer's rights to investigate and the defense lawyer's defense rights; Second, they overlook the ability and motivation for the defense lawyer to investigate evidence; Third, they excessively trust the national special organs to investigate all the evidences actively. Without fundamental change of the structural defects of “the absence of the relationship between the investigation and trial” and the “the centrism of documentary evidence”, we should make clear how to apply for the investigation organ to investigate, rather than being obsessed with empowering defense lawyer the rights to investigate evidence. Therefore, the key point to improve the defense lawyer's rights to investigate during pre-trial investigation is by no means letting the defense lawyer to investigate by himself, but improving the defense lawyer rights to apply for national organs to investigate evidence, especially the realization of the investigation organ's assistance in the implementation of investigating evidences.The fourth chapter discusses the main rights of the defense lawyers during pre-trial investigation and its improvement, aiming at further interpreting the existing legal contents of defense lawyer's rights during pre-trial investigation and the ways to improve them. During the pre-trial investigation, in addition to the rights mentioned above, there are many rights added and regulated in the Criminal Procedure Law(2012) which can not be ignored. Due to limited writing scope, this chapter mainly chooses the following elements as research subjects, i.e., defense lawyer's rights for bail, petition, complaint, illegal evidence exclusion, and presenting defense opinions during arrest and investigation, which defense lawyers often use or the suspects mainly concern about. The bail should be clearly defined as the compulsory measures for protecting defendant's rights by legislation, and it should be the neutral judge to have the power to deny it. We should use the modern means of science and technology to build the bail informational sharing platform to avoid the risk of the bailer's fleeing off., and to improve the enthusiasm of the application of the bail for the detectives by constructing scientific and reasonable performance evaluation mechanism. We should further improve the maneuverability of the rights to complaint, and improve the defense lawyer's rights to participate and get assistance. We should put the illegal evidence exclusion process on the pre-pretrial conference system, fully listening to the defense lawyer's opinion,so as to realize the legislative aims of regulating the investigative behavior and protecting the human rights. During the arrest stage, we should ensure the defense lawyer's rights to know, to reply, and to cross-examine so as to guarantee the objective and neutral party to be approval of arrest. As to perfecting submission of defense presented by defense lawyer before the end of the investigation, we should establish the informing system before ending the investigation, and give the defense lawyer rights to read case files completely, build up the effective mechanism between the investigation organ and defense lawyer.The fifth chapter studies the expanding rights of the defense lawyer during pre-trial investigation, aiming at further enriching its specific contents. Nowadays, China is undergoing its transitional period of ruling by law, and more forward-looking visions are needed to expand the defense lawyer's rights so as to maximize the realization of the values in protecting human rights and justice. To put it bluntly, there are many rights and systems needing to be probed into, while the author only chooses the defense lawyer's rights to present during interrogation, the rights to read case files during pre-trial investigation and public defender system, because those are the ordinary rights the defense lawyers usually use or the most important rights the suspects concern about. The maturity of the theory and the dimness of the practice of the rights to present during interrogation reflect that the rights' running has complex relationship with suspect's statements, procedural culture, guilty conference from silence and beneficial alternative systems. At the moment, especially in China, there is still the dilemma between homogeneity of powers and fuzzy applicable time. In spite of this, the establishment of the system for the defense lawyer's rights to present during interrogation is of great significance in China so as to ease the risks and pressures in identifying the facts for the judge because of the “failure” of the principle “cooperation and restrict”. It can also make up for the relief shortcomings caused by the structural defects in the “absence of the relationship between investigation and trial”. Although we should establish the defense lawyer's rights to present during interrogation, we shouldn't advocate the rights to be universally applied. The ideal model should be like this: “the suspect has the rights for the defense lawyer to present during interrogation, and has the strong willing to choose the alternative systems”. Otherwise, at the pre-trial investigation in China, the defense lawyer's rights to present during interrogation are difficult to avoid the embarrassment of either “legislative omission” or “practical failure”. Due to the urgency of collecting the evidences in the pre-trial investigation, the rights to reading case files should be given to defense lawyers as a principle, and the starting point should be the approval of arrest. The defense lawyers' rights to reading case files should be limited, and the starting point should be the custody. From doing so, we can reduce the rate of custody without seriously obstructing the investigation organs in finding out the case facts at the same time. In order to regain national legal aid obligations, by correcting the justice deviation due to the over commercialization of defense service, we should establish the system of public defender during the pre-trial investigation to realize the equal status of national legal aid. Empirical research data shows that the conditions of establishing the system of public defender in the process of pre-trial investigation are mature, while we must clarify the disputed issues of the public defenders during the proceedings.