On The Investigation Stage, To Counsel The Right

As the fundamental part of the criminal litigation, investigation period embodies the conflict and antagonism between state power and personal right most directly and relates to realizing punishing criminals and protecting human right, thus becoming the focus of judicial justice. The right that lawyers should enjoy in investigation is the prerequisite to bring their defense function into full play. The improvement of lawyers' defense right in investigation has a very important impact on further strengthening the value pursuit of the criminal procedure law about acquittal presumption, balance of accusation and defense, protection of human right, procedural justice and limiting the misuse of investigation right. There are serious defects in the prescriptions of lawyers' defense right during investigation period in Chinese present criminal procedure law. It leads to lawyers' indefinite litigation status, imperfect litigation function, incomplete right of defense and the absence of some basic rights constructing lawyers' defense right. Therefore, lawyers cannot exercise their defense right at all and it is extremely hard for them to realize defense function. With the new round of amendment to the criminal procedure law, expanding and improving lawyers' defense right in investigation and clarifying the content of it becomes especially important. First of all, this paper analyzes the theoretical basis of lawyers' defense right in investigation and reviews the status quo of legislation in our country. And then it concludes the characteristics and problems of lawyers' defense right in investigation. At last, it analyzes the litigation rights that lawyers should enjoy in investigation one by one and puts forward some concrete suggestions to improve it. The whole paper is divided into five parts.The first part analyzes the problem from the point of view of the theoretical basis of lawyers' defense right in investigation and the status quo of legislation in our country. If a country does not build such philosophy as acquittal presumption, human right protection, procedural justice, balance of accusation and defense, it will be difficult to establish the scientific system of lawyers' defense right in investigation oreven though the relevant system has been established, they cannot be executed according to law if investigation personnels' lack related thoughts about modern criminal procedure law. These thoughts should be established and popularized as soon as possible to guide the amendment to criminal procedure law and improve the system of lawyers' defense right in investigation. After reviewing the present legislation in our country, we can find two characteristics of lawyers' defense right in investigation. One is that neither entrusting nor designating lawyers to defend is permitted, the other is that some necessary litigation rights in lawyers' defense right during investigation period is absent. Defense lawyers in our country enjoy only four kinds of rights. It does not correspond to the common action in other countries and the requirement of documents made by UN to a large extent. Many kinds of litigation rights that lawyers in our country should enjoy in investigation, such as investigation and getting evidence right, interview right, interrogation presentation right and lawyers' practice exemption right, are expected in legislation.The second part analyzes the stipulation of lawyers' interview right abroad and the status quo and existing problems of it in our country. Both documents of UN and criminal procedure law in most countries stipulate that lawyers should have possibilities, time and convenience enough to interview suspects in custody. However, the interview right prescribed by law in our country is limited unnecessarily in judicial practice. So the interview becomes meaningless and such kind of limitation seriously violates the legislation spirit of criminal procedure law. In this part, the paper puts forward some concrete suggestions on how to improve and realize the interview.The third part analyzes the abroad regulations on the lawyers' investigation right in investigation and demonstrates its necessity. The attorneys are supposed to be ensured with the equaled investigation right with the investigation organizations. The investigation application system of attorneys should also be improved.The fourth part analyzes the abroad regulations on the lawyers' presentation right. Some regulations in countries of Anglo-American and continental legislation system and international documents are listed to demonstrate that it is necessary to establishthe system of lawyers' presentation right. Chinese lawyers' presentation system should be conceived and relevant protection measure must be improved.The fifth part analyzes the abroad regulations on lawyers' criminal exemption right; the nowadays situation and existing problems of Chinese lawyers' practice exemption right. The Lawyers' Law is proposed to be revised to stipulate lawyers' exemption right clearly, and we should annul the regulations like Article 306 in the Criminal Law to ensure the full performance of the lawyers' defense function.