Analysis Of The Lawyer's Legal Status And Rights In The Investigation Stage

In Criminal Lawsuit 1996 version in China and in Act of Lawyer 2007 version in China ,both of them specified that lawyer can involve in the investigation procedure and give lawyer some right. However, it was a pity that lawsuit never definite the position of lawyer in the investigation procedure. This caused chaos in the lawsuit. On the position of lawyer in the investigation procedure, not only was the definition of role or salutation, but also the degree of right and achievement of lawyer's right in the investigation procedure. It might also influence the lawsuit balance in the later stage of criminal lawsuit. "The history of Chinese and foreign criminal suit proved that the wrong result of judgment belongs to the wrong investigation." Therefbre, from this point of view, the definition of the position of lawyer in the investigation procedure and expanding the lawyer's right in the investigation procedure not only are helpful to the development and perfection of our Chinese defending system, but also plays a very important role in protecting personal right and punishing the criminal acts.This thesis adopted the methodology of analysis & comparison, combination of theory with practice. On the base of analyzing & contracting all theories about lawyer' position in the investigation procedure, considering Chinese lawyers' right in the investigation procedure, inspecting and drawing foreign lawsuits, the writer gives its own viewpoints as follows, suggest that enduing the lawyers with the juridical status and expanding the lawyers' rights in the investigation procedure.This thesis (except the introduction) is divided into four chapters as following:Chapter one: The writer firstly introduced briefly all kinds of theories about lawyer's position in the investigation procedure, then analyzing the theoretical defects about theory of lawsuit assistant & theory of lawsuit agent, and the rationality on the theory of defenders. It has never determined that if we could definite the lawyer's position in the investigation procedure as defender or not, but it is necessary to analyze it in an appropriate view. This is needed to reality to protect judicial justice & human rights and supervision of investigation, also requisite to acquiring the international human right.Chapter two: The writer inspected the lawyer's right in the investigation procedure in the field of our country legislation regulation currently in effect and actual judicial practice. The lawyer was difficult to get involved in the investigation procedure and meet with the suspect in practice. The lawyer's rights were repeatedly accepted. All are the conclusions of the writer. Anglicizing the current situation of the lawyer's right in the investigation procedure, the writer pointed out that traditional ideas of law, not appropriate investigate structure and especially legislation defect bring about lawyer's rights being limited in the investigation procedure.Chapter three: The writer mainly introduced and compared that Britain, the United States, France, Germany law departments' legislation regulation about the lawyer's position & right in the investigation procedure. After a comprehensive survey about the laws , all around the world, although the detection mode, the idea is different, nearly all gives to lawyer defender status and rich right in the investigation procedure.Chapter four: On the basis of analyzing and commenting that, in previous article ,the writer put forward that our country should endue lawyers with the status of defender in the investigation procedure. Secondly the writer gives to the suggestion on legislation: going over examination papers, perfecting the right meeting right, increasing presence tentatively, establishing investigating and collecting evidence, giving criminal immunity of lawyer to five aspect tentatively, having commented that improving and perfecting lawyer's right in the investigation procedure.The writer think we should take deep consideration about lawyer's position & right in the investigation procedure, and the present status of juridical practice, and after analyzing about many countries' legislation, it can give some benefits o improve our own legislation and related legal systems. However, because the writer's knowledge is limited, so there may be some omissions and errors in this thesis, but I hope this thesis can inspire other people to take further research in this field, and give a little effort to perfect the lawyers' position and right in the investigation procedure.