The Revew Of Lawyers' Right Of Investigation And Collecting Evidence

The Criminal Procedure Law provides that the defense lawyer's duty 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 according to the facts and law. The defense lawyer's right to investigate evidence is important to carry out that vital role. However, our legal system to investigate evidence is not enough to protect the defense lawyer's right of investigation and collecting evidence . Therefore, we need to have the defense lawyer's right of investigation and collecting evidence for further study.This article is divided into four parts .The first part is outlined. The so-called defense lawyers in criminal proceedings refer to the lawyer who accept the entrust of the suspect and the defendant or designated by the judicial organs to help them how to use their right of defense to defend the criminal suspect and the defendant's lawful rights and interests according to the law. Although the Criminal Procedure Law does not have a clear position for the lawyer at the investigation stage of criminal procedure , in its essence, a lawyer at this stage can only be a defense lawyer. Defense lawyers must have certain rights to carry out their duty. The right of investigation and collecting evidence is a important right to defense lawyers. It is the right to investigate the facts and collect the relevant materials to the witness , the victim and the relevant units and individuals .That the defense lawyer caary out their right of investigatin and collecting evidence has great significance to protect Defense right and achieve substantive and procedural justice.The second part introduces the foreign defense lawyer's right of investigation and collecting evidence. From the two law systems, the Common Law System's prosecutor and the defense forces are more balanced. The defense and the prosecutor are the parties in criminal procedure, and the lawyer maximize their right of investigation and collecting evidence. The Continent Law System implement the terms of reference and structure. In this structure the investigation functions are carried out by the prosecutor.The defense and prosecutor's litigation status is not entirely equal. With the rising voice in the procedure , it emphasise more about the protection of human rights and litigation status. Comparod to our country's right of investigation and collecting evidence in law , foreign countrys take more importance to the right of investigation and collecting evidence.The third Part analyzes the existing laws and problems of the right of investigation and collecting evidence. The Criminal Procedure Law, Lawyers Act, relevant judicial explanation as well as international treaty which our country put in or signed, provide the lawyer's right of investigation and collecting evidence. Many articles are not coordinated, sometimes even contradictory, and have more restrictions and fewer protection to the right of investigation and collecting evidence, the defense and prosecutor's status is unequal, numerous deficiencies make the defense lawyer's right of investigation and collecting evidence difficult to carry out. The crime of prejudice to the provisions and destruction on the evidence, the crime of falsification of evidence in Criminal Law which aim at defense lawyers, directly make the majority of the defense lawyer in the course of investigation afraid. In fact, it provides connivance for certain organs of state power to do illegal behavior, resulting increased risk of miscarriage.The fourth part provides a series of ideas of the legislative perfection and judicial guarantees about the lawyer's right of investigation and collecting evidence. In the legislative, the lawyer must have a clear defense identity at the investigation stage and have the right of investigation and collecting evidence and the right of presence. It has to give the defense lawyer the right to judicial immunity. And it has to improve the application right of investigation and collecting evidence and witnesses to testify in court system. In practice, the protection of the lawyer's right of investigation and collecting evidence need the help of the public security and judicial organs and the necessary co-ordination of all sectors of society. Lawyer associations should also play their own role in order to strengthen industry self-regulation.