The Accused People's Lawyer's Right

New Attorney Law has become effective on June 1^st, 2008, which has taken a great influence on educational circles and practice fraternity. According to the new attorney law, it strengthen the accused people's lawyer's right, easily for them to get a chance to meet their lawyers, it also releases difficulties of reading documents and collecting evidence and such problems which encourage both educational circles and practice fraternity. But some of investigation departments and public prosecution organs take it as a challenge. It starts among disputation and brings disputation itself.The prosecuted' right to lawyer had been strictly restricted, but at 1996 there were a great changes on trial patte in the criminal procedure law which increase the character of adversary of proceedings meanwhile helping the lawyers' in-advance intervention . It shall be the forceful legislative insurance to the prosecuted' right to lawyer. However, the theory against the practice in judicial, that is, there is a big difference between theory and practice. Our lawyer's reading right, meeting right, and taking of evidence right are still restricted, some of them are even worse.Actually, to solve the problems of lawyers' meeting right, reading right and taking of evidence right are the original intention of the New Attorney Law, but it has the same problems with the criminal procedure law on legislative technique factors. The elimination of vagueness of legislative lexicon creates a large frontier zone for the police and judicial organs. So the New Attorney Law may relieve some questions of the prosecuted' right to lawyer, but it can't solve actually problems. In view of this, after empirical study on enforcement of the New Attorney Law, the paper advance relevant solutions. There are four parts, about 40,000characters.The part one is prolegomenon. This part starts to discuss the legitimacy for the prosecuted' right to lawyer, which already admitted by modern criminal judicial rationality concepts all around the world and confirm by UN and other international human right organizations, it is the basis principals of international conventions. And lawyer defense is part of the prosecuted' right to lawyer. Therefore the definition of legitimacy focus on three factors: requirement of substantive justice and procedural justice; requirement of procedural democracy and procedure participation; and requirement of lawsuit efficiency. And international judicial define the connotation of the prosecuted' right to lawyer. Different countries define its detail according their national conditions. In China, meeting right, reading right and taking of evidence right are specific embodiment of the prosecuted' right to lawyer.Part two is an empirical survey on the prosecuted' right to lawyer. It is the key part of the whole paper. Through study on police and judicial organs in Chongqing and Sichuan, it found that the New Attorney Law has great influence on investigation, public prosecution, trial and defense. And it also collects and comments on many obstructions during effective of the New Attorney Law.Part three analyze reasons why it is so hard for accused people to get help from lawyer. Based on part two, lack of relevant system during reform of criminal confrontation lawsuit is one of reasons. Confrontation lawsuit is not perfect itself, if without other supporting measures, it will make the accused party in great danger. Second negative influence caused by wrong roles of parties of prosecution and defense is another reason. Prosecutor on the party's role which will intense the tension level, weaken its objective responsibility. So the prosecuted' right to lawyer can't take effort without independent judge. And the definition of free professional of lawyer also make the prosecuted' right to lawyer become difficult. At last, before any changes of tradition investigation and lawsuit, the New Attorney Law is too advanced to take full effect.Part four gives some suggestions to perfect the prosecuted' right to lawyer. This part emphasizes on giving new definition of lawyer and strengthening legal supervision function of inspection organs then reshaping relationship of parties of prosecution and defense. The paper also suggests that different countries shall improve the prosecuted' right to lawyer according their national conditions. And successful handing cohesion between the New Attorney Law and criminal procedure law can guarantee smoothly executive of the New Attorney Law.