Perspective Of The Criminal Proceedings Under The New Law On Lawyers' Application Of Research

The new Lawyers Law has been reviewed and approved by the Standing Committee of the Tenth National People's Congress at its Thirtieth Session on December 28, 2007 and shall come into effect on June 1, 2008. The biggest difference as well as highlight between the new and old Lawyers Law is to ensure the lawyers'rights, however which conflicts with the regulations of the Criminal Procedure Law. Over a long period, the most prominent problems of the lawyers in the criminal procedure are the difficulties of appointment, documents review and investigation, which severely affect the function of defense and the criminal proceedings. In order to solve the aforementioned prominent problems, promote the democracy of litigation and protect the human rights, a series of measures are regulated for the protection of the lawyers'rights during the revision of the Lawyers Law. Whether the new Lawyers Law can solve the difficulties of appointment, documents review and investigation fundamentally has not only theoretical value for the connection of the new Lawyers Law and the Criminal Procedure Law, but also practical meaning of guidance.This paper begins with the application of the new Lawyers Law, analyzes the reason of proposing the application of the new Lawyers Law and discusses the theoretical value and practical meaning of the said questions. Besides, this part points out the differences between the new and old Lawyers Law and explains the conflicts between the new Lawyers Law and the application of the Criminal Procedure Law. The second part of this paper is about the conflicts between the new Lawyers Law and the Criminal Procedure Law. In this part the author firstly analyzes the differences between the above-mentioned two laws in respect of the lawyers'right of appointment and investigation, the lawyers'identity, rights of document review and exemption from speeches in the pro-trial phase and proving responsibility of the defending party, then compares the legislation conception of the new Lawyers Law and the Criminal Procedure Law, and lastly discusses the conflicts between the new Lawyers Law and the Criminal Procedure Law with practice.The third part includes the litigation environment and legal basis with regard to the application of the new Lawyers Law. First of all, this part elaborates on the regulations at home and abroad in respect of the intervention of the defense lawyers in the pro-trial criminal procedure and the litigation environment of the application of the new Lawyers Law. Then, this part indicates that the principle of presumption of innocence is the"footstone"of the legal basis with regard to the application of the new Lawyers Law, and the litigation conception that the prosecution and defense is equal and conditioned by each other is also the legal basis with regard to the application of the new Lawyers Law.The fourth part suggests the way to the application of the new Lawyers Law, analyzes the revision of the Criminal Procedure Law and the judicial interpretation promulgated by the Legal Affairs Committee of the National People's Congress with the Supreme Court, the Supreme Procuratorate, Public Security Ministry and Judiciary Ministry or the legislative interpretation issued by the Standing Committee of the National People's Congress in necessity and feasibility.In the last part, the author gives some advice on the application of the new Lawyers Law, including: giving lawyers the defense status in the investigation stage; improving the appointment system, right of document review, investigation and exemption for lawyers. Based on the revision of the Lawyers Law, it is hoped to reform the defense rights of lawyers in the pro-trial stage, endow lawyers more extensive rights and vindicate the suspects'human rights and other legitimate benefits better.