A Research On Several Issues For The Lawyer's Right Of Investigation

In recent years, for the reformed form of trial, the reformation direction is gradually over to the adversary system pattern based on the original pattern of ex officio doctrine. This reform requires justice professionals to give definite specification for the litigant (or the prosecution party and defense party) and restriction on the guidance and regulation of activities such as producing evidence and confrontation and the judge's acceptance and judgment of evidences, with the purpose to ensure the litigation activity can proceed in a just and smooth way. The reform has higher and higher requirements to collect evidences by oneself, however, it is not realistic to expect every party can understand an increasing number of laws and collect evidences in compliance with the law in order to protect self-interests. Under this circumstance, improving the system of evidence-collecting by lawyers is of great urgency.This thesis gives a detailed discussion on lawyers'right of investigation from seven aspects of the preface, the development history of lawyers'right of investigation, the limitation reasons of lawyers'right of investigation, the necessity to vest lawyers with through the right of investigation, several legislative principles and notices that must by implemented by lawyers'right of investigation, and designs about lawyers'right of investigation.The preface is about the reform direction of China's judicial system from the mode of ex officio doctrine to adversary system, and the importance of vesting lawyers with the adequate right of investigation in the reform of trial form.Part 1: the development history of the right of investigation of lawyers. As the establishment time of Lawyer system of PRC is relatively late, and with the decade of turmoil after the founding of new China, the lawyers'system disappeared. Survey on the right of investigation of lawyers started even later. Up to now, there is still no unified and complete theoretical system. Since the research of lawyers'right of investigation focuses on investigation, the first part which starts from investigation expatiates on the emergence and development of investigation, the nature of investigation, and principles which should be followed. The importance of the right of investigation of lawyers in the whole society is clear as a result of expatiation in this part.Part2: an introduction to the right of investigation of lawyers. The concept of lawyers'right of investigation is stated firstly, and then, the nature of lawyers'right of investigation is analyzed. Also this part points out the improperness of delineating the nature of lawyers'right of investigation according to whether the right is public or private, which should be distinguished with other right of investigations based on the special subject: lawyers. In the section of the classification of lawyers'right of investigation, the author makes classification from multi-perspectives on the basis of years of practical experience in jurisdiction. By the classification of lawyers'right of investigation, it is clearly understood that in what level and in what scope lawyers can be vested with right of investigation and why the right of investigation is vested. What is more, by discussing the difference and relation with other right of investigations from a development perspective, it is concluded that lawyers should be vested with adequate right of investigation, which lays a hint for vesting lawyers with the right of investigation in legislature.Part3: the reason for the limited right of investigation of lawyers. That the imperfect legislation is the direct cause for the limited right of investigation of lawyers is indicated, furthermore, the confusion of subjects served by law is the inner reason why lawyers'right of investigation is limited. When analyzed on the internal factors of the limited right of investigation for lawyers, the author points out the internal factors of imperfect legislation of lawyers'right of investigation by the way of comparing features of all subjects served by law, the source of reference, the length of vitality and the mission in the service.Part4: the necessity of enduing adequate right of investigation to lawyers. Firstly, a critical conclusion is made that enduing adequate right of investigation to lawyers is the inherent requirement of democratic politics and the important condition of realizing judicial justice. The basis of lawyers to survival is the right of investigation. The reason why vesting lawyers with adequate right of investigation is discussed from four aspects: first, what the result could be if lawyers have no adequate right of investigation; second, low social status due to the lacks of adequate right of investigation, the reform of the trial form and the change of judicial function of the court urgently demand to vest lawyers with adequate right of investigation; third, the gradually improvement of lawyers'system provide legal protection for vesting lawyers with the right of investigation; forth, it is in accordance with the common international practice to vest lawyers with the right of investigation.Part5: several principles and notices that must be carried out by the legislation of lawyers'right of investigation. The right of investigation of lawyers is the one vested to lawyers. It is indicated by Marx that there is no right with obligation and also no obligation with right. When one right is expanded without limit, another obligation is expanded too; when one right is narrowed without limit, another obligation is narrowed too. Therefore, lawyers'right of investigation can not be expanded boundlessly, moreover, objective and legal principles of consistent obligations and rights should be followed when lawyers'right of investigation is vested, that is to say, during the process of legislation, not only the right is vested but also the statutory obligation of lawyers should be taken into consideration when exercising the right of investigation. Only organically keeping obligations and rights in consistency can the development of the lawyer profession and the reform progress of legal system of our country can be accelerated. Based on this, the author further points out the necessity and importance to keep balance in prosecution and defense, and cancel the authority investigation to the judge gradually.Part5: designs about the legislature of lawyers'right of investigation. This is the essence of this paper while the former discussion is for this part. The author indicates flaws of lawyers'right of investigation invested by present laws in every stage, and brings forward the scope of investing the right of investigation, how and why to invest, besides what obligations should be taken in every stage of the exercise of the right of investigation, and resolutions to difficult problems of lawyers'right of investigation from the aspect of legislature.