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The Empirical Investigation Into The Participation Of Lawyers In The Stage Of The Review And Arrest

Posted on:2016-05-16Degree:MasterType:Thesis
Country:ChinaCandidate:C L SongFull Text:PDF
GTID:2296330461959005Subject:Procedural Law
Abstract/Summary:PDF Full Text Request
Criminal procedure law of 2012 and Provisions of the Supreme People’s Procuratorate on the protection of the rights of lawyers of 2014 have provided supports and securities of lawyers’ participation in the procedure of the review and arrest, moreover, it advocates the judicial justice and efficiency. As our legislation is not so mature, most of the regulations are relatively rough, some of which are only suitable for guiding practice, but not practical. Although some institutions are finding ways for lawyers to participate in procedure of the review and arrest and receive some success, it is still in the horizoning stage. Therefore, it is necessary to investigate and analyze roundly and deeply. This article intends to reveal some problems and give some analysis through surveying the lawyers’ participating conditions. Consequently, it attempts to give some advice suitable for lawyers in China to participate in the procedure of the review and arrest.This article consists of four parts:Part 1 focuses on the basic theory of the system. Firstly, it will increase the transparency of the review and arrest procedure for lawyers to participate in it, making the arresting decision visible. Secondly, it is helpful for procuratorial organization to make proper arresting decision. Lastly, it may help find out the problems hiding behind the procedure.Part 2 demonstrates an overall investigation into the participation condition for lawyers in the review and arrest in the people’s procuratorate at the basic level in district B and J in city C in the way of empirical research. Firstly, it investigates the general condition including the quantity and type of the cases lawyers participate in. According to the investigation, the effect of this system is poor. Although lawyers participate in various kinds of cases, the influence of arresting decision remains little. Moreover, owing to some lawyers and prosecutors who do not want to intervene in judicial proceedings positively, it makes the system defunct. Furthermore, this part tries to investigate the concrete participation rights deeply. One is the open to opinions of lawyers, the other is the refinement of it. Whichever is adopted, the opinions of lawyers are just indispensable.Part 3 intends to expose the problems in the review and arrest stage with the participation of lawyers based on the results of empirical research such as the low proportion, the little effect, the difficult intervention of legal aid, the low-quality defensive opinion, and the estrangement between lawyers and prosecutors. All problems are behind of this system. There are some main reasons responsible for the effect of operation, one is the notions of the main body. Some criminal suspects don’t believe in lawyers while some officials in the public security organization and procuratorial organization impede the exercise of lawyer’s rights. As for the lawyers themselves, they don’t want to intervene in the judicial proceeding too early. The other is the system itself. It is the system which has no unified regulations, specific range of cases, unified processing program of information, reception and examination and even the following recovery program. In addition, there are some other reasons, which include inadequate legal aid and dereliction of duty and even illegal operation of some lawyers.Part 4 searches for the remedies to the case to offer some proposals to improve the system according to the discovered problems. First, it is vital to change the ideas and to improve the participation proportion of lawyers. The procuratorial organization should pay more attention to lawyer’s opinion and take an objective and neutral position while the lawyers should increase the awareness of participation and the social public should increase their legal sense in order to create a good judicial environment. Second, we should construct the participation procedure reasonably, making it clear the arrange of cases that requires lawyer’s opinion, build and improve the procedure of information, listening, reception, examination, management and feedback as well as a relief mechanism in order to ensure its unified operation. Moreover, improve supporting measures, including strengthening the communication and connect among public security organization, procuratorial organization and lawyers to ensure timely participation of lawyers, improving the legal aid system to ensure the help of lawyers available for criminal suspects, strengthening lawyer’s rights and defense ability. Meanwhile, strengthen the supervision to lawyer’s action to ensure the lawyers to perform their duties properly.
Keywords/Search Tags:the stage of the review and arrest, participation right of lawyers, empirical research, construction of procedure
PDF Full Text Request
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