On Defense Lawyer’s Right To Investigation For Evidences In Tribunal Judicial Centralism

The right to defense lawyers’investigation in China is not spontaneous. It is different from the "Songshi" in ancient Chinese society. The germination and development of the right to defense lawyers’ investigation experienced a very hard period of time. At first the 1979 criminal procedure law did not recognize the investigation right of defense lawyers. Then the 1996 criminal procedure law amendment admitted the defense lawyer’s right to investigation. Finally lawyers were identified as defenders in the investigation stage in 2012. As a conclusion, the defense lawyer’s right to investigation is gradually expanded with better and better protection from the law. However, the defense lawyer still has difficulties in investigating now, not only by themselves, but also by applications. At the same time, the article 306 of the criminal law is like a sharp "sword of Damocles" threatening all defense lawyers.Tribunal Judicial Centralism is the guiding ideology and the direction of the development of the criminal procedure. Tribunal judicial centralism does not completely come from foreign country. It is our experience and principle which come from the process of law development in the past thirty years. According to the requirements of the national work conference on criminal trial in 2013, the concept of Tribunal Judicial Centralism can be divided into three aspects:structural requirements, substantial requirements and affordable requirements. The structural requirements mean that the key stage of the criminal procedure is trial and the decision must be made in the court. The substantial requirements refer to investigation and debating in the court. The affordable requirements mean that we need to implement the principle of direct verb and illegal evidence exclusion. The direction of the development of the right to defense lawyers’investigation is achieving the balance between the prosecution and defense and defending effectively.There are some rules about the right of defense lawyers’investigation in the Anglo-American law system and continental law system. Also, there are some commonalities about the right of defense lawyers’investigation in these two law systems. In foreign countries, the defense lawyers’ investigation is a complementary way. It has arbitrariness. And defense lawyers can apply to court for compulsory investigation. We can get beneficial thoughts and references from these similarities to improve the right of defense lawyers’investigation in China. At the requirement of Tribunal Judicial Centralism, development of the right to defense lawyers’investigation can not only provide institutional guarantee, but also benefit development of judicial practice, and has advantages of ensuring the legal rights of criminal suspects, improving the accuracy of law fact and reducing errors in case processing. The direction of the development of the right to defense lawyers’investigation is achieving the balance between the prosecution and defense and defending effectively. On the concrete system construction, therefore, we should establish "limited" right to investigation firstly, to ensure the feasibility of system. Secondly we should give the prosecution and defense the equal time to investigate, in order to ensure the balance between them. Thirdly, we need to widely provide the defense lawyer rights to present, to strengthen the power of lawyers in the evidence. Fourthly, we have to strengthen the protection of right to investigation, and make it linked to the judgment, as well as reference to the system of survey. Finally, we have to abolish the article 306 of the criminal law, which means make the right to investigation unlimited.