The Right Of Lawyer In The Early Period Of Investigation

This paper is divided into four parts,except for introduction and conclusion.The first part is about the definition of the right to lawyers in the early period of investigation.Article 33 of the existing Code of Criminal Procedure provides that the suspect has the right to entrust a lawyer as his defender from the date on which the first questioning or coercive action happens.Article 36 provides that defense counsels may provide legal assistance to suspects during the investigation.According to the provisions,during the investigation phase the suspect is entitled to the right to lawyers.But the starting point of the investigation was tacitly after filing,thus at the preliminary stage of investigation before filing,the accused's right to lawyer is deprived.The initial stage of the investigation,the investigation is typically the best time to clear up the case,and a period when the accused needs the help of the defense lawyers most urgently,it is the two basic points to study the content of the lawyer's right in the early period of the investigation.The second part is about the basic theoretical issues of the right to lawyer in the early period of investigation.Any system has reasons and grounds for its existence and development,that is,the basic theory.According to the particularity of the initial stage of interrogation,the author contends that the theoretical bases of the system include the principle of self-incrimination,the principle of equality between prosecution and defense,and the principle of due process.The third part is an extraterritorial study of the status quo of the right of help from lawyers at the initial stage of investigation.Compared to China's situation,the rules and practice of the right of help from lawyers at the initial stage of investigation in foreign countries are both fairly sophisticated.Within certain international conventions as well as the Constitutions and the Criminal Procedure Laws of various countries,the right to help from lawyers at the initial stage of investigation is clearly defined.It is worthy to note that in 2013 the EU adopted the "the Directive on access to lawyer",stipulating in detail the concrete contents of the right to help from lawyers and its application as well as restriction.The European Court of Human Rights has specified a series of issues on the right to help from lawyers through several cases.The Salduz case,among others,is a milestone,after which many European countries commenced legislative reforms on the right to help from lawyers at the initial stage of investigation,such as France,the Netherlands and Scotland.The fourth part is about the local situation of the protection of the rights of persons being prosecuted at the beginning of investigation.The construction and perfection of the system cannot rely entirely on transplants of legal provisions from other jurisdictions.Only by grasping the status quo of the protection of litigious right of persons being prosecuted at the initial stage of investigation can we construct a decent system of the right to help from lawyers at the initial stage of investigation in China.At the beginning of investigation in China,there are only two main bodies involved,namely the prosecution and the prosecuted,while defense lawyers generally do not intervene.Therefore,the investigatory activities in the early period of investigation have characteristics of interrogative litigation model,which is contrary to the principle of fair trial.This situation necessitates the system of the right to help from lawyers,which is certainly subject to the need to investigate cases,thus it is legitimate to put limitation on the right to help from lawyers at the initial stage of investigation.The fifth part is about the construction and perfection of the right to lawyers at the initial stage of investigation.After the analysis in the first four parts,I try to put forward the ideas about the concrete measures regarding the right to help from lawyers at the initial stage of investigation.It is very important to inform persons being persecuted about the right to help from lawyers in a clear way no matter through oral notification or written notification.The concrete contents of the right to help from lawyers at the initial stage include the access to legal consulting and the appearance of lawyers during interrogation.The reasonable restriction on the right to help from lawyers at the initial stage of investigation must be clear,despite the fact that there is no absolute right.But,as an exception,the principle of necessity,the principle of proportionality and the principle of legal reservation should be followed.The final violation of the right to lawyers at the initial stage of investigation should be a way-the rules of excluding evidence.