Research On Lawyer’s Defense Right In Investigation

Code of criminal procedure which revised in1996, set the rights of suspects asking lawyers provide legal aids in the investigation stage. This set changed the mode of investigation that it used to only accord to the investigation office giving criminal sanctions. It meant that our criminal procedure making progress in democratic, programmed and scientific field. In October2007, new revising of the act of lawyer made expansion of the litigation rights of lawyers in the investigation stage. It is a big achievement in China democracy and legal system. But because of the conservation and defection in China legislation, lawyers’ litigation status is not clear in the investigation stage. And defenders’ rights are not perfect. In practice, lawyers have only the rights of being accepted and guarantor pending trial application and seldom limited rights. Besides, these rights are always restricted or deprived by procuratorate. So defenders cannot fulfill their duties and responsibilities. They cannot preserve the basic human rights and litigation rights of suspects. Therefore, in the good opportunity of modification of code of criminal procedure this year, it is necessary to endow lawyers’ litigation rights in wider scope and complete the defense rights of lawyers in the investigation stage of suspects.This article first states the theory and necessity of suspects having the defense rights of lawyers in the investigation stage in China. And in this article there are simple investigations of the legislation of defense rights of lawyers in the investigation stage in common law system countries, civil law countries and international conventions, and comes up with suggestions to China laws. Second, this article analyses the current situation and difficulties of legislation and justice of defense rights of lawyers in the investigation stage in China. At last, there are some specific suggestions of establishing and completing the system of defense rights of lawyers in the investigation stage, which according to the current national conditions in China. There are four parts in the article.The first part begins with the history of defense rights of lawyers in the investigation stage. This part states the basic theory of endowing the defense rights of lawyers’in the investigation stage system from balance between the prosecution and the defense, progress justice and human rights guarantee. Second, this part demonstrates the necessity of endowing defense rights of lawyers in the investigation stage from three aspects of completeness the prosecution and the defense equality in the investigation stage, useful supervision and the restriction of the rights of investigation of office and the preservation of the defense rights of suspects.The second part stresses on the rules of legislation of the lawyers’defense rights in the investigation stage in common law system countries, civil law countries and international conventions. And this part compares the different countries lawyers’rights among meeting and communication rights, consulting and presence rights and investigation and obtaining evidence rights. Then this part provides the useful experiences to China.The third part mainly analyses suspects’defense rights of lawyers from the current situation and difficulties of legislation and justice of defense rights of lawyers in the investigation stage. Now there are still many problems to lawyers in the investigation stage in China, such as, having not clear litigation status, the difficulty of meeting suspects and losing some rights of litigation.The forth part comes up with the specific suggestions of development and completeness China defense rights of lawyers in the investigation stage. First, the law must endow lawyers’ litigation status of defenders in the investigation stage. Second, the law must be completed and endow lawyers reading rights, particular investigation and obtaining evidence rights and consulting and presence rights. Third, the relative supporting policies of defense rights of lawyers in the investigation stage must be developed and completed.