Research On The Defense Lawyers’ Evidence Collection Rights In Investigation Stage

Nowadays, the social transformation of Chinese society is under progress with high rate of corruption and criminal cases. In order to enhance efficiency and take the criminal in control, organ of investigation is likely to infringe the personal right or code of process. The role played by defense attorney is getting more and more important. The kernel function of defense attorney is the extent of investigation granted. Because of the imperfection of the legal environment of China, the permission for investigation of defense attorney is still under water. It is confirmed the role of defense attorney as defender in the Criminal Procedural Law which also brings opportunity to that defense attorney could do some investigation during defense stage. With this opportunity, I would like to provide some suggestions for the situation of present Chinese legal environment with the experience borrowed from overseas.Above all, investigation period as the beginning of criminal prosecution is the preparation for the next stage which is with some features. Whether the evidence collected is enough or not during the investigation period would decide the prosecution and trial procedure in later stage would run well. It shows that whether the defense attorney could execute the right of investigation or not would have a special meaning. So the conception and characteristics of right of investigation need to be studied carefully. Also, the reversion of Criminal Procedural Law2012basically provides the legal basis for investigation right of defense attorney during investigation period. Meanwhile, process legalization, human right protection and presumption of innocence borrowed from abroad in the progress of legal reform also provide the legal basis for investigation right of defense attorney during investigation period. So there is no doubt about the investigation right for defense attorney. However, the scope of investigation right for defense attorney should be defined carefully. Limited right for investigation of defense attorney would improve the legal prosecution process without hampering the prosecution. This is the direction for future development. Also, studies based on the research on the investigation right of defense attorney in the investigation period both in Anglo-American Legal System and Continental Law System shows the most suitable system would be the one based on Chinese reality with borrowed elements and thoughts which are constructive. Finally, the most important part is the defense attorney could apply for investigation, evidence protection or taking part in investigation when he is not able to investigate which is based on the limited right for investigation of defense attorney. This application is confined within the situation like questioning the suspect, field investigation and rummage. In order to protect the right of investigation for defense attorney, the right of interviewing and examination of papers should be clear and the human right for defense attorney should be protected. In order to protect the right of investigation for defense attorney, the function of law firms and association of attorney should be enhanced for normative and punishment of offended attorney. The only way to realize the substantive right is to make the legal system complete. Completion of right of investigation and rules and legislations which facilitate the right consolidate the right of defending and further claim the justice for the suspects.