On Realization Of Lawyer’s Investigation Rights In Civil Suit In China

Lawyer’s investigation right in civil suit refers to the right a lawyer takes during civil action, to investigate and collect evidences, in accordance with defined methodology and procedure as a litigant agent. Lawyer’s investigation right in civil lawsuit is characterized by specific subject, object, approach and purpose. Deriving its authorization from the litigant, the right is actually an extension of civil rights of citizen, however its range is more wider than litigant right.There are two main functions of lawyer’s investigation right in civil action. The first function is to make up for the defects of the entitled investigation and evidence obtainment by the Court. It is enable Court to relieve from great pressure and short timing, as well as reduce judicial costs and improve efficiency. It could meet the initiative shortage when the Court investigates by itself. What’s more, when Court investigates by itself, it is easily weaken the Cross Examination Right and benefit of argument of the litigant. Further, it also causes justice corruption, if the civil action is completely relied on Court investigations. The second function of lawyer’s investigation right is to achieve entity justice by promoting civil right protection, which will be accomplished via two ways: helping the litigant complete his or her responsibility of submitting proof, and asking for more transparent information from government.The lawyer’s investigation right in China Civil Procedure sees a great improvement since 1949. However, there are still a lot of problems both in legislation and practice. Difficulties on independent investigation or evidence collection is a common obstacle any civil litigation lawyer faces when he or she confronts with government authorities, financial institutions, other organizations or individuals.Analyzing obstacle, writer believes that the fundamental reason was restriction of litigation pattern. On one side, the system of investigation and evidence collection in our country is deeply influenced by the ancient inquisitional proceedings and Continental Legal System, with a clear trace of authority effect. On other side, some positive learning from the Common Legal System has been done, and lawyer is entitled to investigate and collect evidences in China. But this right is extremely general and infeasible. There is no measure to protect the right nor to sanction any behavior hampering this right from being properly used, compared with Acts in Common law system. Other reasons like legislative defect, disqualified lawyers, low social status, and lack of legal philosophy are considered factors which interferes with the lawyer’s investigation right beside the root cause.To improve this situation, with domestic and foreign regulations taken into consideration, I propose several suggestions to guarantee the lawyer’s investigation right as following:1. Reform the litigation pattern to emphasize the domination of investigation of the litigant and the lawyer.2. Improve the legislation about the civil litigant lawyer’s investigation right.3. Improve the qualitification of lawyers and raise their social status.4. Publicize legislation extensively and improve legal environment of whole society.