An Empirical Study On Defense By Counsel During The Stage Of Review And Prosecution

After the prosecution of the case review of the prosecution, the case should be made to prosecute or not to prosecute. In the review of the prosecution stage, lawyers fully perform their duties not only could help to fight for the suspect to the non-prosecution, but also could help to win favorable charges(including charges, crime shape, number of crimes, the status in the common crime and function of sentencing suggestion for criminal suspects) when the suspect have to prosecute, which is helped to ready for the trial. Therefore, the review of the prosecution stage is one of the main battlefield of the defense. From the perspective of effective defense, the lawyer's defense should have effects, First of all, the lawyer can participate in the stage of review and prosecution; secondly, the lawyer can fully perform its rights; finally, the views of lawyers can be fully respected and adopted by the procurators. However, in China, due to various factors, lawyers in the prosecution defense duties have not been fully effective performance. So this article is about An Empirical Study on Defense by Counsel during the Stage of Review and Prosecution form A District. In this article, it found the questions and the reasons, and puts forward to the improvement lawyers advice of the stage of review and prosecution. It is hoped that through this study, it could helpful to deepen the theoretical study, improve the relevant legislation and guide the judicial practice.Except the introduction part, there are three parts of the text which totally include 36,000 words.The first part is about lawyers' participation during the stage of review and prosecution. Form 2008 to 2014, there are only 27.75% of the cases have defense lawyers in A District. The number of the defendants who got lawyers help is 1952, accounting for 27.75% of the total number of criminal cases; Among them, 1433 suspects and the defendants have entrusted the defense, accounting for 73.42%, 515 suspects and the defendants have access to the designated defense(legal aid defense), accounting for 26.39% of the total. From the lawyers involved in the stage of litigation, the investigation stage participation rate was 3.6%, the prosecution stage participation rate was 26.57% and the first instance participation rate was 69.85%.From the above data, it can be seen that the proportion of lawyers involved in the prosecution phase of the review is generally low, so it should earnestly implement the provisions of legal aid, and expand the scope of legal aid, in order to ensure more suspects in the stage of review and prosecution counsel.The second part is about lawyers' duty status during the stage of review and prosecution. Form 2008 to 2014, the number of cases of investigation and evidence collection is only 97, 7.25% cases of possession of the total number of cases of lawyers. Among them, the number of lawyers to investigate the number of victims is 3 times, the number of lawyers to witness the 5 times, the number of lawyers to the community and other units are 95 times. However, the lawyer investigation and collection of evidence is often limited to the collection of criminal suspect social information. The number of applications for investigation and evidence collection is very small, with an average of less than 2 per year. it find that, are basically protected expect corruption and bribery. In the verification of evidence, A district where the province will verify the evidence standard, but the scope is so narrow that limit the attorney rights of hands and feet, and contrary to the original intention of the legislation. According to the above problems, puts forward the guarantee measures for lawyers to perform their duties.The third part is about the effect of the lawyer's defense during the stage of review and prosecution. The lawyer have the right to put forward their own defense opinions to the procurator after perform their duties. it found that the attorney opinion will is not strong, the number is less, the ratio is very low. Form 2008 to 2014, the number of the review of attorney opinion of written comments during the stage of review and prosecution is only 10, accounting for 0.58%?0.17%?0.6%?1.07%?0.46%?0.51%?0.44% in the whole year,an average of 1.43 per year. Faced with the views of lawyers, 7 years, a total of 10 pieces of written opinion, the prosecutor only listened to 5 times, the adoption of only 3 times. Procurators rarely actively listen to and reasonable adoption the defense opinions, Although some lawyers are not high quality, not easy to put forward the views of high quality, the ways of mechanism which the prosecutors listen to is not perfect, the concept of law enforcement have not be changed and the wrong evaluation mechanism is the key factor which restricts the effect of lawyers. So at the end of this part, puts forward the countermeasures to improve the effectiveness of defense.