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The Empirical Research Of The Marking Rights For The Lawyers

Posted on:2016-08-28Degree:MasterType:Thesis
Country:ChinaCandidate:C HuFull Text:PDF
GTID:2296330461963607Subject:Procedural Law
Abstract/Summary:PDF Full Text Request
The defense system is an important component in the criminal justice system,and the marking right for the lawyers is the most important part among all legal rights for the lawyers. Based on the judicial present situation of our country, the independent evidence ability of the defense is weak, largely unable to support the process of searching and collecting the criminal cases database and the relevant evidence materials. So the marking right became the most important one to protect the attorneys ’ right to get informed, and the exercise of degree can make an enormous impact on the overall defense effect. From the criminal procedure law that has modified in 2012, the legislative achievements about the marking rights for the defense has been admired by the academia and practical circle. But we still need to seek that if the presentation of the judicial practice can reach the purpose of the lawmakers,which is hoping the marking right of the defense can make the prosecuting and defending parties be equal. To inquiry the operational state of the marking right for the defense after the largely amended of the law,through empirical study, selecting the judicial practice feedback from some lawyers in seven cities, this paper is trying to reflect the marking right for the lawyers in the practical running statustruly and objectively, and seeking the development direction which can make the marking right for the lawyers get real security.The article is divided into three parts, about 30,000 characters.The first part is the analysis and summaries about the operation conditions of the marking right for the lawyers. After searched the relevant issues about the marking right in the criminal defense from 136 lawyers in 7 cities, including the main way to get the relevant informations from the case; the main way to apply for marking; timing for lawyers involvement in marking; the main field of marking for the lawyers; should allow the lawyers read records during the investigation stage; the main way that the lawyers can read the relevant information; the specific remedy channels for the lawyers;the general evaluation from the lawyers about the marking system. All of the eight aspects of the marking right for the lawyers. Overall, after the criminal process law has been modified, there’s an obvious progress about the marking right for the lawyers, the traditional puzzle about the marking right for the lawyers has been greatly mitigated. So the key research issue has been changed from protect the marking right for the lawyers to protect the defense lawyers can get equal criminal case database which is compared with the prosecution by reading records. And can strengthen the power of opposition and realize the equality between the prosecutor and the defendant. Most defense lawyers for criminal case are hoping and pursuing it. Nevertheless, the statement concerning the marking right for the defend lawyers in the legislation of China is not precise, the juridical practice become optionally, and the implement of the marking right for the defense lawyers has became different degrees of delay and blocked. Especially about the delivery of the materials in cases, the permission for the lawyers’ marking right and the judicial relief system, these sides do not practice the spirit of the legislation. The real protection about the marking right has not been fully realized.So, try to promote the operation of the marking right for the defend lawyers look promising.The second part is analyzing the cause of the problem which is reflected from the current situation. First of all, the defense lawyers really suspect the integrity of the materials in the cases that they can read from the prosecution. The defend lawyers thought the investigating organ and the procuratorial organ may adopt and discard the materials in the cases during the process of production and delivery, especially for the evidence materials which are conducive to the suspects, maybe they didn’t record and delivery these materials perfectly. One the other side, the defend lawyers can hardly aware this situation. In normal conditions, they can’t question timely. Or they can realize the behavior that the relevant organs may adopt and discard the materials, but the relief can only be realized until the next litigation stage. In addition, for some special type cases, the defense lawyers can only read the conclusive results, so the marking means reconfirm the investigation results, the lawyer can’t make the effective cross-examination, even can’t survey the procedure legitimacy of the prosecution by reading records. Secondly, cause the legislation about the scope of the materials in the case is not clearly, so the judicial authority can decide the scope of the materials which will provided to the defend lawyer. For several related materials which formed during the judicial proceeding, cause their characters have not been identified clearly, so generally the prosecution forbid the defend lawyers consult these materials before the trial, so it really influenced the realization of the marking right for the defend lawyers. Thirdly, relevant judicial organs didn’t execute the protection of the marking right thoroughly. Especially during the stage of review and prosecution, some procuratorial organs didn’t cooperate or respect the marking right for the defend lawyers. On the contrary, they usually formulated several internal rules which are written or unwritten, for the sake of hinder the defend lawyers to read the materials in the case. This impacted the realization of the marking right greatly, and it deviated from the principles of efficiency, so it made a great waste of the judicial resources.The third part of the paper is expounding the ways of realize the real protection about the marking right for the defend lawyers. According to the three issues and the analyses, the author has put forward several directions and suggestions about how to improve the current situation. First of all, regulate the conveyance of all dossiers, make sure the materials in the case can be delivered during different stages in the criminal procedure roundly and completely. Especially for the materials which are benefit to the accused, they should not be excluded before the defense knows. Secondly, further refine the relevant laws and regulations about the marking right for the defend lawyers. Not only the attribute of the marking right for the defend lawyers, the basic category of the marking right, but also the relief ways for themarking right. Meanwhile, we suggest allow the lawyers reading materials during the investigation stage limitedly, so the lawyers can come up with effective legal advice, it can help to reduce the rate of pre-trial custody,and implement the legislative spirit of human rights. Certainly, based on the objective requirement of the secret investigation, the range and relative programs about the marking right for the defend lawyers in this stage should be regulated. Thirdly, improve the judicial officers’ legal accomplishment and the communication between the prosecuting and defending parties to make sure they can carry out the litigation care obligation perfectly. The concept can influence the action, so only improve the legal consciousness can assure the investigator, procurator and judge make positive protection and necessary assistance for the defense lawyers’ related rights. And this is also the objective requirement to implement the real protection for the marking rights.
Keywords/Search Tags:The lawyer marking, Materials in the case, Delivery of the dossiers, Real securit
PDF Full Text Request
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