Study On The Right Of Access To Files For Defense Lawyers In Investigation Stage

In the criminal procedure,conferring right of access to case file to defense counsel is an important mean to narrow the information gap between the prosecution and the defense,achieve effective defense,as well as protect the human rights of the accused to realizing fair trial and procedural justice;Meanwhile,in the process of disclosure during the investigation stage,dangerous such as obstructing the investigation and jeopardizing public safety also exists.In current Chinese Criminal Procedural Law,disclosure in investigation is still a grey area.With the changes in the concept of litigation and the investigation model in China,It is widely debated by scholars that whether the right of access to file is essential for defense lawyers,if lawyers are allowed to the case file,how to balance the interests of all parties.This article is divided into four parts.Through the desk research,discussing the essence of the defense lawyer's right of access to case file during the investigation stage.Also analysing the necessity,risks and feasibility of giving this right to lawyers through comparative study and and social investigation.Finally,setting a suitable disclosure or access to the file system for Chinese jurisdiction.The first section is an overview of the defense lawyers' right of access to case file in investigation phase,aiming to establish a theoretical background for the full text.The concept of evidence disclosure,the right to investigate and collect evidence,and the defendant's right of access to case file have similarities with the defense lawyer's right of access to case file,which is helpful to understand the nature of this right:unilateral information disclosure to the defense lawyer.The second section compares and draws lessons from foreign defense lawyers' right of access to case file at the investigation stage and related systems.It mainly discusses the significance of the evidence discovery system in the investigation stage in England to safeguard the substantive confrontation between the prosecution and the defense;and then discusses how to apply different legal systems under the principle of "fair trial and weapon equality" established by the European Court of Human Rights in human rights regulations and judicial precedents.The European Union has established a principle for understanding the information of the defense scheme that is compatible with the two types of litigation structure;then it discusses the review system and the dossier viewing system of the civil law countries represented by Germany.In Taiwan,lawyers are allowed to having access to casefile at the stage of investigation and custody.Giving defense lawyers the right to know the information in the investigation phase and to restrict this right have been a concensus in all jurisdictions,from which China can learn and improve.The third section is the status quo of defense lawyers' right of access to case file in the investigation stage in China.In the legislation,the right is still in a grey area,In some key phase of investigation,such as arrests and detentions,lawyers cannot obtain substantial case file information and materials.The reason for this situation lies in the dislocation of the criminal concept,the obsolete investigative model,and the ambivalence of the investigators in this right.The fourth section discusses the necessity and risk of giving defense lawyers the right of access to case file during the investigation stage in China.Establishing a limited right system for defense lawyers in the investigation stage is of great significance in safeguarding human rights,balancing the information gap between the prosecution and defense parties,ensuring the defense of the defense lawyers,and improving the efficiency of litigation;at the same time,granting the right to defense lawyers also have a risk of hindering investigation and jeopardizing public safety.The fifth section is to explore the feasibility and pathway of defense lawyers' right to review in the investigation stage.Under the current national conditions in China,litigation concepts such as "trial centered " and "fair confrontation" are constantly infiltrating into criminal justice system,and the fields of legislation and practice provide theoretical and practical foundations for imparting the right to defense lawyers in the investigation phase;Based on China's national conditions,it is necessary to give the defense lawyers a limited but sufficient rights and establish a set of procedures and management systems.When the right is violated,there should be a relief method.