The Plaintiff And The Defendant's Defense Lawyer Right Of Action Under The Equality Perspective

As one of the indispensable parts of penal proceeding system, Lawyer's Advocacy is the major means for defendants to enjoy the right of advocacy. Equality between prosecution and advocacy ensures criminal advocacy to work normally and efficiently, it requires the establishment of a reasonable and scientific system of procedure. It is the significant guarantee for the defendant's human right and judicial justice. To realize the equality between prosecution and advocacy, it is absolutely necessary to bestow the attorney the independent principle status and ensure their rights in penal proceedings. Nevertheless, the present status quo in China of the rights and positions of the advocating lawyers in penal proceedings is quite upset, and is far from the demands on the equality between prosecution and advocacy.Passed in the 30^th Conference of the 10^th CNPRC and carried out since June 1^st 2008, the new Lawyer's Law has made important modification towards the prior one, which has broadened and perfects the rights of lawyers. Undeniable, the modification of "Lawyer's Law" haven't solved all problems. In practice, the execution of this modified law still confronts difficulties and flaws. So the writer of this article put forward some concerned proposals to promote the perfection of the penal proceeding system bases on the concept of equality between prosecution and advocacy and the introduction and the analysis of the present status quo of the position and rights of Chinese advocating lawyers in penal proceedings.This thesis is composed of four chapters. Chapter One is about the basic theory on the right of advocating lawyer in penal proceedings, explaining the keynote of lawyers' advocating rights, and clarifying the foundation and advocate value of their rights. Chapter Two explains the theory of equality between prosecution and advocacy firstly, and then discusses the function of the advocating lawyer's rights in penal proceedings on balancing the two parts of prosecution and advocacy, specifically ascertaining the proceeding status of the attorneys and their rights, and analyzing the causes of the problems in this kind of situation. Chapter Three analyzes laws, rules and judicial interpretation and compares foreign laws in two main Legal Systems, expecting to bring new methods on innovation of China's advocacy system and the improvement of Chinese lawyer's advocating rights. Chapter Four is mainly about the new "Lawyer's Law", analyzing the new rules about lawyer's rights, and put forward the guarantees of the procedural rights of lawyer for improving and promoting the penal proceeding system.