Empirical Research On Lawyer's Intervening The Phase Of Examination And Approval Of Arrest

Examination and approval of arrest is an important part of the arrest procedure, it is directly related to the suspect's personal freedom. Improving the procedure of examination and approval of arrest is a key step in promoting the arrest system. examination and approval of arrest relates to the relationship between the investigation, prosecution and defense, however, in our country, attorneys have long been in a state of absence, which is not only incompatible with justice, but does not conform to the trend of world development. Criminal Procedure Law implemented from January 1,2013 responds to this finally, which acknowledge attorney's identity in the investigation stage, and provides lawyer's intervening the system of examination and approval of arrest at the first time. Followed by implementation of the People's Procuratorate Rules of Criminal Procedure(Trial)(Revised 2012) and Provisions of the Supreme People's Procuratorate on the protection of lawyers of 2014 have provided supports and securities for this system. This system has a positive impact in respecting and safeguarding human rights and promoting judicial fairness, and is in line with the principles of open procedure, procedure participation and effective defense. However, in China, as our legislation has just started, most of regulations are relatively rough, some of which are only suitable for guiding practice, but not practical, and the supporting system dose not follow-up. All of this leads to the effects achieved in practice is not satisfactory. Whether lawyers participate in the procedure of examination and approval of arrest, largely related to fully effective protection of the parties' legitimate rights and interests, and ultimately affect the achievement of justice. Therefore, it is necessary to investigate and analyze deeply and roundly, so that we can combine the theories putting forward some advice from a practical level, and exploding suitable operational mode of this system in our country.In addition to the introduction and conclusion, this article is divided into three parts, totally of more than 40,000 words.The first part is an outline. This part describes the theoretical basis of the system and evaluate the system's theoretical value from a theoretical point of view. Firstly, the system will increase the transparency of the stage of examination and approval of arrest, meeting the requirements of the principles of open procedure and procedure participation. Secondly, as suspects natural allies, lawyers participate and in accordance with the rights granted by law will contribute to change the suspects' natural weak position and protect the right to defense of full and effective implementation. Finally, allowing lawyers to participate in the procedure and giving both parties a fair opportunity to present will make both parties exercising the right of prosecution and defense rightly and the prosecutors fully grasping the circumstances of the case and more abundant evidence, so that prosecutors can make a more objective and accurate decisions, which not only improve the efficiency of the prosecution, ensure the quality of case, but also embody the impartiality and the legitimacy value of the judiciary, and protect the legitimate rights and interests of criminal suspects.The second part demonstrates an overall investigation into the participation condition of lawyers in this system at the basic level in three areas in the way of empirical research. Firstly, it investigates the general condition including the rate of participation of lawyers and the factors, the way of lawyers' participation, specific practices of lawyers, how lawyers' participation affect the Prosecutors' decisions, and analyzes the main problems. According to the investigation, the effect of this system is poor. Although lawyers participate in various kinds of case, the influence remains little, which reflects many problems. Firstly, the body of informing is arguable. Although the investigation and supervision department is the main choice in practice, this exists some limitations, prone to the problem of disconnection. Secondly, the way of participation is controversial. Lawyers mainly submit written comments, which should be the common way in the short term. For many scholars have called for ‘Judicial Hearing Mode', the author analyzes its limits from judicial resources and asymmetrical information resources, and finally concludes that although ‘Judicial Hearing Mode' is more in line with the defense of justice and should be the future direction of our legislation, the obstacles its facing is difficult to overcome in short-term. Thus, in the current condition, further building the existing mainstream ‘Marking and Suggestion Hearing Mode' should be the preferred mode of reform. Finally, a wide variety of views put forward by lawyers and their poor quality in some extent hinders the system to form a long-term mechanism system. In addition, the investigation and supervision departments hold negative tendencies in reviewing the conditions of the arrest, ignoring many of the comments made by lawyers, which greatly overshadowed the effect of the system.The third part based on the results of the research, proposes strategy prospect to this system. As for the poor effect, we should first improve the system itself, including improving the legal aid system to ensure the help of lawyers available for criminal suspects; expanding sources of information to strengthen the right to counsel; confirming the way of informing and reforming the procedure of informing to strengthen the communication and connection among public security organization, procuratorial organization and lawyers; improving the existing ‘Marking and Suggestion Hearing Mode' to make lawyers' participation implemented; strictly review process, enhancing arrest reasoning, so the attorney's opinion will not become a "dead letter", and provide evidence for future rights of relief material. Moreover, establishing supporting systems, includes building procedural remedy system to strengthen the rights of relief for lawyers; meanwhile, strictly consummating explanation system to increase the transparency of the decision to arrest and reduce unnecessary petitions and complaints.