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On The Right To Investigate And Collect Evidence In Criminal Proceedings A Lawyer

Posted on:2009-12-06Degree:MasterType:Thesis
Country:ChinaCandidate:Y Y LiuFull Text:PDF
GTID:2206360248451152Subject:Criminal Procedure Law
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Evidence is the spine of proceedings. Criminal evidence collection , testify, confrontation and adoption were the determinative factors in the final attestation and verdict ion. Evidence collection is the basis of further proceedings, the premise and guarantee of the lawyer's effective defense. Therefore, the right of evidential investigation takes the crucial status in the defense system and the mainstay of the Due Process. Some provisions in the current Criminal Procedure embodies the said right of the lawyer, but it would never realized due to the lack of rules of guarantees, and never bring succor to the victim as well. As the reform of litigation system goes forward and the concept of human rights becoming universal, the defect of the Procedure Law not only affects the realization of the suspects or the accused' subject status, but also has great affection to the fairness and efficiency. Then after the analysis of the legislative stipulation of China's evidential investigation system and its operation in practice and a general comparison of some other countries, we try to reform our system of the procedural guarantee of evidential investigation including its rationality and feasibility.This paper is about 30000 words consists of 4 parts.The instruction briefly introduced the theoretical premise, writing purpose and set forth its importance in the national integrity system. Starting with the right to investigate which is the core of the lawyer's rights of defense, then extends to the necessity of establishment and consummation of the lawyer's right of evidential investigation system. Pointing out the significance in both theory and practice in the re-amendment of the Criminal Procedure background.The partⅠis about the legal principle of the lawyer's right of evidential investigation. First, the writer give definition of it. The definition of narrow sense is adopted in this article it means the right for defense lawyer to investigation and find out the details of a case in ways of collecting evidential material from related persons or units(including the witness, the victim, the close relatives and the witness provided by the victim). The aim of the said right is finding out the evidence t prove the suspects or accused are innocent or only commit lighter crimes , or the criminal liabilities upon them shall be abated or exempted, providing powerful defense and protecting their legal rights and interest. The said right includes self-investigate or apply-investigate. The former is basic meaning and the latter is extending meaning. This paper analyzing the said right's subject, range, way and stage, discussing its relationships with the right of inter-review and reading the document and records. Analyzing the legal basis origins and reality significance with 4 fields consists of balance between the accuser and defense, effective defense, guarantee of human rights and democratic litigation.The partⅡis about the comparative research of the lawyer's right to investigate and collect the evidence of some other countries from different legal system, and also observing and studying the basic provision and operations both in Rome law system and common law system. This system introduces the said right in ways of self-investigate system and applying-investigate in German and France. Comparing these pros and cons would provide relatively reference for us.In partⅢ, the writer analyzed the current legal situation in our country, including the provision 37th of Criminal Procedure by analyzing the defect of it and dissecting its obstacle in practice. There are 3 main issues, first, the lawyer loses the timely and effective opportunity to collecting evidence due to the lack of concrete provision of the said right. It is not only affect finding out the truth but also has great affect on the effectively defense and guarantee of the suspects. Second, the right of self-investigate has been seriously limited, not only by the relative ones but also the courts and procurators. Third, the said right lacks of procedural guarantee, the lawyer's apply for investigate was decided by the courts and procurators without remedial measure. Meanwhile, the lawyer's apply for anti-hearsay system lacks guarantee as well. By further analysis we get 3 reasons, firstly, the defense and prosecution were in a state of imbalance. Secondly, the prejudice against lawyer and defense oriented from the traditional legal culture. Thirdly, the charge 306th in current Criminal Law heightened the risk of lawyer's collection of evidence.PartⅣ. The reforming of the lawyer's right of evidential investigation system The writer starts with the transforming of the trial pattern, discussing the necessity of consummating the system. On basis of this theory, the writer draws a lesson from some other country's similar experiences, raises a view of possessing the defense status for the lawyer in the stage of investigation, strengthen the subject status of the lawyer in legal form in the same stage, and possessing the right of apply-investigation as procedural guarantee.The writer concludes the affect and status of the right in Criminal Procedure Law and its importance in the reforming of trial pattern. With the discussing on the litigation conditions in our country and effect on the rule by law, the writer further indicating the purpose of the article at last.
Keywords/Search Tags:Evidential investigation, Criminal procedure, Defense lawyer, Balance between accuser and defense
PDF Full Text Request
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