On The Prosecutorial Relief Of Defense Lawyers' Litigation Rights In China

Based on China's police,prosecutors,and the three agencies of the "line" type of litigation structure and the prosecutor's office as a legal supervision agency constitution orientation considerations.Article 47 of the "Criminal Procedure Law"amended in 2012 establishes the procedural remedy for the defense lawyer's litigation rights,that is,when the defense lawyers in the public security,prosecution,court and other case handling agencies and their staff implement improper behaviors that prevent them from exercising their litigation rights according to law,A remedy or avenue to correct misconduct to restore impaired rights.The litigation rights of defense lawyers in China mainly include the right to apply for evasion,the right to meet and communicate,the right to review,the right to apply for evidence,the right to investigate and collect evidence,the right to submit opinions,the right to apply for changes and the removal of compulsory measures,and to participate in court investigations and court debates.right.In judicial practice,there are various forms of infringement of defense counsel's litigation rights,but in essence they have the result of obstructing the defense lawyer's exercise of litigation rights.Therefore,all should be corrected and relief should be implemented.Judging from the current legislation,there are still many problems and shortcomings in the current system.First of all,the lack of rigidity of relief means that it is difficult to exert substantial results.Second,it is to prove the gap of the mechanism;finally,the concrete procedures for relief are incomplete.To improve the existing prosecution remedy system,the first is to increase the rigidity of the relief measures.This includes the addition of procedural sanctions and individual punitive measures against offenders.The second is to perfect the certification mechanism.At the initiation of the proceedings,defense lawyers who lodged complaints and complaints bear the initial burden of proof.In the review process of the procedure,the case handling agency that has been appealed or charged bears the burden of proof of the legality of its actions.As far as the standard of proof is concerned,in the initiation and acceptance stage,the setting only needs to reach the level of "suspicion".At the review stage,it can be set to exclude reasonable doubts.The third is to improve specific relief procedures.First,in terms of the initiation and acceptance of the procedure,it is determined that the form of the defense lawyer's initiation of the relief procedure is a written form,the conditions for acceptance are clarified,different types of relief-receiving subjects are determined according to different levels of infringement subject,and secondly,in the review and decision of the procedure,A review decision model that supplements the hearing process with the principle of written review should be established;again,in dealing with and executing procedures,the prosecution should be required to make an illegal rectification notice when making a decision,and the illegal rectification notice can be sent by post.With the receipt of the receipt,the rectified organization will send the receipt back to the procuratorate after the implementation of the illegal rectification notice.If the illegal organization refuses to sign or refuses to correct it,the discipline inspection and supervision department of the relevant organization will investigate the disciplinary liability of the relevant personnel.Finally,add feedback and review procedures.After requiring the procuratorial organs to implement the relief,the procuratorial organs will report the results of the handling of the case and personnel to the defense attorney for complaints and complaints.If the defense lawyer complaining or accusing does not approve the conclusions of the procuratorial organs,he should be allowed to apply for a review at the higher procuratorial organ.