Research On The Lawyers' Evidence Collection Rights In Investigation Stage

The lawyers'evidence collection rights in investigation stage stands for integrity, democracy of a country's penal proceeding system and it's an important measure to protect human rights. What is more, set up a scientific system of evidence collection rights in Investigation stage is the need of presumption of innocence, procedural fairness of the judicial spirit. That also is the need of China's current criminal justice practice. But Criminal Procedural Law of china does not give the right for the lawyers'evidence collection rights in Investigation stage, new Lawyers Law abolishes the restrictions of this right, but the new law does not explicitly given to lawyer how to use this right. This situation leads to status in litigation of lawyers in Investigation stage is unclear, right in litigation is imperfect,they almost cannot use their power in practice. So it is difficult to lawyers to realize defense duties and to protect the lawful rights and interests of suspects. Throughout domestic and abroad, including common law or civil law regulation and practice, Lawyers enjoy a certain right of evidence collection in the investigation stage. Therefore the law must give the lawyers'evidence collection rights in investigation stage and protect the full exercise of this right; only through this way can we set up a penal proceeding system in line with international standards. Now the key problem is how to solve this situation from the perspective of legislation. This paper discusses this problem from several aspects as following, helping to promote the reform of penal proceeding system.Chapter one analyses the necessity of the lawyers'evidence collection rights in investigation stage, then draw the conclusion that this rights of lawyers have Realistic Significance. Firstly, this right can make contribute to justice and procedural fairness and can protect legal right of suspects. This right ensures the suspects'related evidence ,such as innocent,relieve etc, can be fully accumulated, it can promote accurately reflect the facts of the case ,because this rights makes good to realize procedural fairness, so set up this system is necessary. Secondly, guarantee lawyers rights to fulfill defense responsibilities, and maintain modern lawyers' system. The best stage for Lawyers obtain Evidence is in the investigation stage, so it's necessary to guarantee this system. This right is the foundation of defense duty. In order to maintain modern lawyers system, it's also necessary to guarantee lawyers'evidence collection rights so that lawyers can get into the judicial proceeding as soon as possible. Thirdly, ensure to achieve judicial purpose and promote efficiency of the proceedings. This right will help lawyers to achieve judicial purpose, keep balance between punish crime and fully protection of human rights. Lastly, keeping balance between prosecution and defense, promoting reform of litigation system. This right is conducive to achieve balance between prosecution and defense, from the above analysis, our country is necessary for setting up the lawyers'evidence collection rights in Investigation stage.Chapter two mainly introduces the evidence collection rights of abroad, through the way of comparing, this work has the big significance to set up and perfect our country's lawyers'evidence collection rights in Investigation stage. The civil law and common law systems have a relatively perfect defense system, but because of different detection mode, the system of evidence collection rights and how to protect this right has big difference between the civil law and common law systems. Firstly, it introduces United Kingdom and the United States on behalf of Common Law. In the background of common law, due to its double-track system of detection mode, lawyers can make the best use of their evidence collection rights in investigation stage. Secondly, it introduces Germany and France on behalf of Civil Law. In the background of common law, its single-track system of detection mode makes the great restriction for the lawyers'evidence collection rights in Investigation stage. It is noteworthy that although Japan and Italy are belonging to civil law countries, they absorbed a lot of common law factors after their reform of criminal proceedings. So this paper will analyze separately those two countries'the lawyers'evidence collection rights in Investigation stage. Analysis methods including: the right of self-investigation,apply for investigation,investigate with investigative organs.Chapter three mainly discusses our country now is lack of the lawyers'evidence collection rights in Investigation stage. Firstly, after a lot of study, you will see: the lawyers cannot act as an agent in litigation in the investigation stage, the lawyers do not have the right to investigate and obtain evidence; when the suspects are questioned, the lawyers cannot be on the scene; The right of meeting is restricted somehow; supervision system is imperfect. From the above points, we can draw a conclusion now our country is lack of the lawyers'evidence collection rights in Investigation stage. Finally, analyze the origin why our country is lack of this system. The origin is: don't believe lawyers, the goal of the investigation is not reasonable; there is something wrong with the structure of criminal action; state takes the absolute lead in the judicial system.Chapter four mainly discusses the vision the lawyers'evidence collection rights. The reform of this system is subject to the overall trend of China's Criminal Procedure Law, further explain, it is subject to the overall trend of operation of judicial power. Our country operation of judicial power is going to transform from National to procedure-standard. In this process, protection of human rights and prosecution power to the criminal are both the value orientation of our country criminal procedure law. In the long run, criminal procedure law is still remaining within the terms of the characteristics of doctrine, so the lawyers'evidence collection rights cannot be fully protected. Let alone evidence collection rights in investigation stage. Thus, the reform of this system cannot be in idealized design, but rely on the reality. The direction of this reform is both have some characteristics of two legal systems, but the highlight characteristic is Adversarial System. Firstly, what is lawyers'role positioning in investigation stage. Their role positioning is defender. Secondly, what detection mode our country should choose. At present, in our country we cannot fully implementation of two-track model, but we can give the lawyers some rights in investigation stage. At the same time, set up some regulations to define this system. Thirdly, after solving the above problems, give briefly introduction of the way how to give the lawyers'evidence collection rights in investigation stage. The ways including: the limited self-investigation in investigation stage; the lawyers apply for investigation and evidence protection in investigation stage; investigate with investigation organs. Finally, making briefly introduction of how to relief in investigation stage. The points are: apply for investigation and evidence protection; investigate with investigation organs.