On Guaranteeing That The Right To Defense Check The Power Of Investigation

The majority of error of criminal cases is in investigation process, thus, how to regulate the power of investigation reasonably become a core issue.In order to curb arbitrary exercise of power of investigation, it is necessary to endow a wide range of rights to defense for the defense countering the power of investigation, to guarantee that the right to defense check the power of investigation become a major theoretical and practical topic.Compare abroad to guaranteeing that the right to defense check the power of investigation, we can found that there were a lot of questions about it in china, such as the power of investigation is too strong to be checked, the strength of the defense is too small to form checking the power of investigation effectively, the content of the right to defense is too simaple, and so on.Through the comparative study of Chinese and foreign circumstances, that we can find and solve these questions is aim of this article.In china, guaranteeing that the right to defense check the power of investigation have great theoretical and practical significance.In theory, by analyzing the source of power, we can make conclusion that the rights of citizens are supreme, the power of investigation cannot be in superiority, legal status of the defense and the prosecution are equal.Thus, we must safeguard the right to defense of criminal suspects, cannot place obstacles of exercise of the right to defense because of the need of investigation, human rights of criminal suspects must be protected fully, we should design fundamental structure of investigation process as the idea.In practice, investigation phase become collection of questions, the key is that there is deviation of designing investigation process, it ignor the exercise of the right to defense effectively, and lead to some questions which havenot been solved for long time, for example extorting confessions by torture, extended detention, restriction of right to defense and so on.Therefore, it is necessary to strengthen the right to defense in investigation process to check the power of investigation effectively.The article is divided into eight chapters.The first chapter is outline of the power of investigation.the essense of the power of investigation should be executive power, not judicial power.There are five characteristics of exercise of the power of investigation: focusing on efficiency; strong tendency of prosecution; unilateral; postive; discretionary power is strong an so on, it lead to deterioration of status of criminal suspects.The second chapter is the theoretical basis of guaranteeing that the right to defense check the power of investigation.It include theory of checking power, theory of protection of human rights and theory of due process.The third chapter is the realistic basis of guaranteeing that the right to defense check the power of itivestigation.It include expansion of the power of investigation, abuse of the power of investigation, the secret of the investigation process, alienation of evaluation mechanism.The fourth chapter is outline of that the right to defense check the power of investigation.There have many means of checking the power of investigation, but that the right to defense check the power of investigation have obvious superiority: fate of criminal suspects is related to exercise of the power of investigation; criminal suspects know which right was violated by the power of investigation; the objective obligation of the prosecution cannot deny that the right to defense check the power of investigation.We should let the right to defense carry on checking when the investigation organs exercise the power of investigation, but there have certain weakness of that the right to defense check the power of investigation, such as finiteness, no coercion and dependence of checking.The fifth chapter are factors of that the right to defense check the power of investigation: acts must have explicit provisions of the right to defense, criminal suspects have legal basis of exercise of the right to defense; investigation organs have informing obligation when they exercise the power of investigation; counsel system, it can make up for condition limitation of criminal suspects, realize equality between the defense and the prosecution, and strengthen subject status of criminal suspects; there are legal relief channel after the power of investigation violated the right to defense.The sixth chapter is foreign system of guaranteeing that the right to defense check the power of investigation. Juridical practice of western countries which are under the rule of law have four measures: the right to defense must be in provisions of acts; investigation organs have informing obligation; emphasize counsel system in investigation phase like lawyer on duty; procedural sanction, including rules of exclusion of illegal evidence and ineffective system of legal action.The seventh chapter is status quo of guaranteeing that the right to defense check the power of investigation in our country: acts have provisions of the right to defense; information obligation is in judicial interpretation; counsel system have legal basis; procedural sanction is in acts and judicial interpretation.The eighth chapter is deficiency and perfection of guaranteeing that the right to defense check the power of investigation in our country.First of all, the constitution and code of criminal procedure only provided the right to defense of defendant, it should increase the right to defense of criminal suspects ;the power of investigation is too strong to be checked outside the the prosecution; the content of the right to defense is incomplete.Secondly, the content of information obligation is few and should be increased; informing action is after interrogation and should be ahead of interrogation; acts should have specific procedure of informing.Thirdly, counsel should exercise the right to defense when investigation organs exercise the power of investigation in public prosecution cases; title of lawyer only must be counsel in investigation phase; to access legal aid is very difficult in our legal aid system.Finally, the biggest deficiency of the existing acts is lack of legal consequence and relief channel after the procedure was violated, it is necessary to strengthen rules of exclusion of illegal evidence and to set up ineffective system of legal action, so that we can guarantee that the right to defense check the power of investigation really.