Research Into The Criminal Suspect's Right Of Denfense In The Procedure Of Investigation

The criminal suspect's right of defense from the procedure of investigation means, when the criminal suspect is interrogated or taken some compulsory measures for the first time in the organ, he has right to appeal, explain from the accusation of investigating organ, in order to safeguard his own legitimate rights and interests. It has defensive, antagonistic, absolute and legal characteristic.There are three origins of theory: The main body theory of the procedure, the theory of human rights guarantee and equilibrium of the prosecuting part and the denfense one. whether lawyer gets involved in the procedure of investigation effectively is the guarantee of right of defense the ciminal suspect exercises fully, resulting in a limitted function the lawyer exerts. It is difficult to respond to the request the criminal suspect exercises and pleads the function. Take a broad view of the legislation and practices with the administration of justice in some western main countries governed by law for the guarantee measures of ciminal suspect′s right of defense from the procedure of investigation, there are some differences in excluding rule of evidence, the lawyer's right and the criminal suspect′law aid, etc. However, the main countries governed by law above generally approve the criminal suspect enjoys the right of denfense during the course of investigation and has all stipulated the comparatively detailed guarantee measures to this kind of right. By contrast, the criminal suspect′state of right of denfense is unsatisfactory in the procedure of investigation in our country. In the legislation, the law, on one hand, requires criminal suspects to state accurately and the criminal suspects does not enjoy silence right; On the other hand, lawyer's status is flur in the proceduce of investigation and the lawyer doesn't have right to get involved in the procedure of investigation. In the judicial practice, the defence that the criminal suspect pleaded and got the lawyer by oneself is beset with difficulties. so, if we want to change this kind of imperfect state, we should chang the traditional lawsuit idea at first, establish the"human-oriented"idea, embody humane care to the criminal suit party. Secondly, we should change current investigation mode of administration and make the procedure of investigation present lawsuit shape of"the equilibrium of the presecuting party and the defense one". Lastly, we should revise and improve current legal provisions, make the criminal suspect enjoy silence right, knowing rights and right of complaint, etc. from entity and procedure, make the lawyer enjoy right to meet, right to present, investigating and collecting evidence rights, etc. Only so, the criminal suspect′s right of denfense can be realized.