Analysis About The Defense Lawyer’s Right To Investigate And Collect Evidence During The Investigation Stage

What the meaning of evidence collection rights of the defense lawyer is that lawyer has the rights of finding the relevant organization and people to investigate and collect evidence material that can prove the facts of the case in the investigation stage of criminal procedure, which fulfill defense responsibilities and safeguard the legitimate rights of the criminal suspect. The defense lawyer’s right of investigation and collecting evidence in investigation stage has specificity, defensive, absolute and non mandatory features and so on. It is important to restricting the power of investigation, maintain the equality of the prosecution and the defense and safeguard the legitimate rights of the criminal suspect. The developed countries governed by law not only grant the defense lawyer’s right to investigate and collect evidence,but also establish a relatively complete security system to make defense lawyer full exercise this rights effectively.Criminal Procedure Law of the People’s Republic of China revised in 2012 stipulates for the defense lawyer’s right of investigation and collecting evidence in investigation stage, meanwhile including the object of, the way of and the methods of investigation, the security system, the legal responsibility of illegal investigation and so on. However, this law still has some shortages. The main performance include:the defense lawyers’ rights are restricted too much; simple investigation methods; relying too much on respondents; the layers’ association can not play a role; less right relief way; the exercise of rights is too risky.We must perfect the system of evidence collection rights of the defense lawyer in investigation stage to give full play to their role as the lawyer’s defense, reflect procedural justice and achieve substantive justice.This paper will be divided into four parts:The first part, the paper expounds the definition, property and significance of evidence collection rights of the defense lawyer in investigation stage that can lay a theoretical foundation for the research of paper.The second part, observe and study oversea system of evidence collection rights of the defense lawyer in investigation stage, mainly includes common law system countries as Britain and the United States, the Continental Legal System countries as Germany, France and Japan. On the basis of the analysis of these countries, the paper points out the reference significance of outside system for our country.The third part, the article analyzes the legislative current situation of evidence collection rights of the defense lawyer in investigation stage in our country. There are five pivotal problems:the defense lawyers’ rights are restricted too much; simple investigation methods; relying too much on respondents; the lawyers’ association can not play a role; less right relief way; the exercise of rights is too risky.The fourth part, the paper put forward some suggestions about how to perfect the system of the defense lawyer’s right of investigation and collecting evidence in investigation stage. It mainly includes:reduce the limitation on the defense lawyers’ right of investigation; improve the system of the right to relieve; give more functions to the lawyers association; reduce the professional risks of defense lawyer; increase the way of investigation.