Study On The System Of Investigation And Collecting Evidence By Defence Lawyer

The word"lawyer"in China originally come from Buddhism, refer to the person who depend on their pleading ability and their knowledge about the law to serve the society. Essentially lawyer system belongs to the superstructure, so it occurred in the period that commodity economy is prosperous, and occurred after the States and the law system appeared. Modern democratic politics make the appear of the professional lawyer come true. The professional lawyer also demonstrate the political civilization and the procedural civilization.Criminal defense lawyer refer to the person who accept the entrust of the criminal suspect and the defendant in order to help them how to use their right of defense, defend the criminal suspect and the defendant's lawful rights and interests. We can see that the criminal defense lawyer only serve the criminal suspect and the defendant, their responsibility is to find the evidence that can prove the criminal suspect and the defendant innocent, defend the criminal suspect and the defendant's lawful rights and interests. The criminal defense lawyer should investigate and collect the evidence which beneficial to the defendant, deny the competency of the evidence belong to the accuser and the evidence that can oppose the weight of the accuser's evidence. The purpose is to protect the right of the criminal suspect and the defendant. So if the defense lawyer find the evidence that can increse weight the penalty, the defense lawyer have to keep secret. According to the legal rules, defense lawyer have the right to collect the evidence from the interested party and the witness. Besides of this , the defense lawyer can also apply the Procuratorate or the Court to collect the evidence. This rule has its positive side ,but because of the fuzziness and the prejudice in the judicial practice, this rule become the hinder in the collect evidence in most time. Obviously it is deviate the original idea of the legislator.We can search the jurisprudence basis of the defense lawyer's right of investigation and collecting evidence from the angle of the Social Contract. It come from the authorize by the criminal suspect and the defendant, but more than this because the litigation rights of the lawyer is independent from the country power, it is very different from the country power. On the basis of the evidence that the defense lawyer collected, the lawyer could oppse the accuser sufficient and powerful. Modern legal philosophy demand the defense and the accuse condition each other in the court, to reach the fact and the justice by the fierce debate. In fact ,we use this justice to make up the injustice that exist before, for example, the seal, secret and the unilateral of the investigate procedure, and the capability of authority abused and infringe the human right of the criminal suspect and the defendant. It is a sort of"to mend the west wall by tearing down the east wall", but I think this is very nessesary in nowadays legal environment. On one side it indicate that our procedure exist many problems, on the other side it also indicate the legislator realize the problems and prepare actively to solve the problems. It is no dout a good signal.I introduce foreign defense lawyer's right of investigation and collecting evidence in Part 2 of the article. I choose representative countries from Common Law system and Continent Law system as the example, analyse the system of lawyer investigation and collecting evidence depend on the rules of the Criminal Procedure Law Code of these countries. Although there are diffrernt of concrete rules in these two law system, but the spirit is same, it is to say though the defense lawyer's investigation and collecting evidence is less important and supplement, the evidence they collect is very important to the case. Compared to our country's system of lawyer investigation and collecting evidence, foreign law more focus on the protect of the lawyer's right of investigation and collecting evidence. And some foreign countries allow the defense lawyer present when the Public procurator or the Judge ask the defendant, which show the idea of protect the lawyer's right of investigation and collecting evidence broadly and sufficiently.Part 3 and Part 4 are the main body of this article, comment the current situation and the exsisted problems, and analyse the reason on the system stage , and suggest concrete measure . our country's system of lawyer investigation and collecting evidence not only on the basis of the Criminal Procedure Law , but also inclued the Lawyers Act , some judicial explanation and the international treaty which our country put in or signed. The positive side is although the legal rules are dispersed, the power is not lost. The negative side is so many legal rules don't estabolish a rigorous system of lawyer investigation and collecting evidence, supplement judicial explanation and the promulgate of a lot of various rules embody the lack of prospectivity when legislate, lack of stability that a mature code should be have .This point is that we cannot avoid. This problem is exist in most legislation process in our country , we could not hope that the problem can be solved immediately. In our country we restrict the defense lawyer's right of investigation and collecting evidence more and protect less, the position of the defense lawyer and the accuser is not equity, when defense lawyer's right of investigation and collecting evidence is refused by the Procuratorate, the Court and a party , it did not regulate how to relieve this right. All of these are the bottleneck that bind up the lawyer's investigate and collecte evidence. Furthermore the Criminal Law regulate Be harmful to give evidence crime and Help destroying , fabricating evidence crime, directly lead to most defense lawyer have too many fears when collect evidence. It is connive the organs of state power's illegal behavior, and increase the rate of the wrong case.We can also search the reason for the imperfect of lawer's Evidence from the local community besides from the Legal aspects.In thousands of years of our traditional culture,the mind of shame and hate to the Litigation have been impacted People.The public are contravenced to the Defence counsel from heart,afraid of revenge or stay away from the trouble,it's not meet the Defence counsel's survey and evidence in surface no matter what the motivation is,the Legal didn't provise any punitive measures about it,lead to the the Defence counsel's survey and evidence became a nonsence in this point.On the other hand,many judical officers and most of the public just believe the entities justice,ignoring the procedural justice,though more and more people recognized the worth of the procedural justice by promoting of the Legal theory,we cannot deny the power of the traditional,we cannot completely reverse the misunderstanding caused by the history.At last,we cannot ignore the problem of the defence counsel's team,organization and management confussd,a number of thethe Defence counsel's professional ethics and professional standards do not compliment, these factors will increase the criticism to the Defence counsel's system.Against the reason we analysed,we should take measures to Legislation,the self-discipline of lawer's and the changes in the concept of the public,making the Defence counsel's survey and evidence system play the biggest role,this is not only reflect the attention and the security to the criminal suspects and the accused,but also construct the proper meaning of Defence counsel's survey and evidence system now and in the future.