A Analysis On The Lawyer’s Presence System In The Criminal Investigative Interrogation

Videotaping and recording system and lawyer’s presence system in the criminal investigative interrogation have been the two effective way to control the torture by modern democratic countries under the rule of law. Article121of Criminal Procedural Law of2012formally established the videotaping and recording system in the criminal investigation interrogation. However, lawyer’s presence system in the criminal investigative interrogation has been shelved because of various reasons. China should build the lawyer’s presence system in the criminal investigative interrogation with relevant supporting system. Based on the study of the general theory of the lawyer’s presence-system in the criminal investigative interrogation, this article focusing on its theoretical basis, necessity and feasibility pointed the possible way to construct this system in china after an overall study of the advanced legislation and practice of developed countries under the rule of law. The full text is divided into five parts:The first part, an overview of the lawyer’s presence system in the criminal investigative interrogation. On the basis of analyzing the meaning of the lawyer’s right in criminal investigative interrogation, this article has summarized the concept, the characteristic and the nature of the lawyer’s presence system in criminal investigative interrogation.The second part, a study of the lawyer’s presence system in advanced countries under the rule of law and its enlightenment. Based on the analysis and comparison of the reason why different countries and regions have formed different systems, this article obtained the conclusion which benefits the construction of the local system after a systemic introduction of the new development of the lawyer’s presence system in criminal investigative interrogation in typical Continental law countries and Anglo-American law countries.The third part, the theoretical basis of the lawyer’s presence system in criminal investigative interrogation. The theoretical basis including the following aspects:one is the presumption of the innocence assumption; the second is the mode for the balance of the defendant construction; three is the value pursuit of procedural justice; fourth, the function orientation of lawsuit supervision.The fourth part, the necessity and feasibility of establishing the lawyer’s presence system in the criminal investigative interrogation. Its necessity embodies in:one is the important way to guarantee the rights of ’.the accused; the second is to protect the basic rights and interests of the investigators; three is the realistic requirement to promote the lawsuit; four is the demand of the modern democratic concept. Its feasibility embodies in:one is the concept transformation between the two sides; the second is the growing development of the lawyers becoming the realistic foundation; three is the strategy of gradual implementation; four is the full academic research providing the intelligence support.The fifth part, the local construction of the lawyer’s presence system in the criminal investigative interrogation. This part points out the possible path to build this system, including the applicable scope of the case, the lawyer’s rights and obligations, the procedure and the related construction supporting the system.