Meet Right: Defense Attorneys And Prosecutors Dual Perspective

With continuous acceleration of Chinese legal governance development, criminal litigation concept of advocating balance between accusers and defenses and paying attention to assurance of human rights has become the direction of Chinese criminal procedure reform and development. Some contents about meeting right stated in current Criminal Procedure Law of the People’s Republic of China and Lawyers Law of the People’s Republic of China have been not able to meet demands of times development. Such legal provisions are not only inattentive, but also have structural defects, resulting in absence of effective assurance of legitimate rights and interests of criminal defendants and difficulty in realization of judicial fairness. In response to the call by theoretical circle and practice circle, new Lawyers Law has improved provisions about lawyer meeting right, hoping to resolve long-standing difficulty in meeting lawyers. Such provisions reflect international judicial standards of assuring human rights, but it is difficult to effectively implement such provisions in Chinese juridical practice. The author the essential reason is current meeting right of China is designed from the perspective of lawyers and meeting right is formulated with lawyers as the subject of meeting right, which surely will result in difficulty in realization of meeting right with criminal defendants as the subject. In China, whether in laws or juridical practice, meeting right of criminal defendants are not fully recognized. Improvement of criminal defendant’s right of meeting with lawyer constitutes an important content of modification of Criminal Procedure Law of the People’s Republic of China and Lawyers Law of the People’s Republic of China. We should refer to oversea experience on legal governance and make criminal defendant’s right of meeting with lawyer a basic right of criminal defendants.Currently, Chinese legal provisions about meeting right greatly falls behind countries with advanced legal governance and related legal provisions in the world and there are many problems in lawyer’s meeting with criminal defendants. In consideration of this, China shall refer to some legal provisions and judicial practice experience about meeting right in countries wit advanced legal governance, related international conventions and international judicial standards and improve lawyer meeting right policy from the perspective of criminal defendants. This article attempts to analyze changes in lawyer meeting right and criminal defendant’s right of meeting with lawyer in the stage of investigation before and after modification of Lawyer Law of the People’s Republic of China, thoroughly analyze reasons for difficulty in meeting, conduct analytic demonstration of meeting right from the perspective of criminal defendants, and finally put forward related suggestion about improvement of Chinese lawyer meeting right from the perspective of criminal defendants.This article falls into five parts.The first part introduces research background and research value of this article.The second part mainly discusses current difficult situations of lawyer meeting right. First, it expounds current situations of realization of meeting rights before and after modification of Lawyers Law of the People’s Republic of China and analyzes problems existing in practice of Chinese lawyer meeting right. Second, it analyzes reasons for difficulty for meeting. Effectiveness of meeting right as authority of lawyers is insufficient to resist investigation power as public power, resulting in difficulty in meeting. Moreover, current legal system of China does not have corresponding remedial approaches and measures for infringement upon meeting right.The third part analyzes right of meeting with lawyer from the perspective of criminal defendants. First, it expounds theoretical basis of the right of meeting with lawyer. Second, it refers to related provisions about lawyer meeting right and analyzes direct basis of lawyer meeting right of criminal defendants from the perspective of criminal defendant’s right to lawyer.The fourth part puts forward some solutions to realization of right of meeting with lawyer of Chinese criminal defendants in legislation and juridical practice. It combines related provisions of international conventions, refers to related oversea legislations and sums up Chinese experience and lessons about such problem. The author plans to put forward some suggestion from the aspect of legislation assurance and judicial practice, hoping to improve related provisions about meeting right, assure realization of meeting right of criminal defendant and really realize dual purposes of Chinese criminal procedure, i.e., punishment of criminals and assurance of human rights.The last part is conclusion. This part summarizes main issues discussed in this article.