Research On The Establishment Of The Lawyer Marking In The Stage Of Reviewing Arrest

Arrested as a pretrial procedure of the criminal suspect in personal freedom limit is the most severe compulsory measures,the 2012 revision of the "criminal procedural law" the86 th specified in paragraph 2 a defense lawyer in review arrest stage provides the right to defense opinions,and from the provisions of article 35,the defence shall be based on facts and law,if it is to be implemented in a real made of the right to defence on part of the investigation phase,shall at least arrest and its related links to ensure that the evidence material which is the basis of the defense lawyers refer to arrest the opportunity.Right now,in China,defense lawyer points only after the transferred for examination before prosecution shall enjoy the right of marking,during the period of review to arrest,defense attorneys can only by meeting with the criminal suspect and the investigation organ about the two ways to know the case,this case attorney's advice to review in the procuratorial authority to arrest when play with investigation organ effect against rival,decided to arrest has little impact.Not simply for the nodes of the lawyer read right there are different views,and for the lawyer marking procedure of concrete operation are also controversial,even for the "review" arrest whether the lawyer shall enjoy the right of marking,occasionally also not systematically discussed,as to how to make through legislation in the judicial practice of relevance,especially theory of vacuum.Therefore,it is the main purpose of this paper to examine whether lawyers should be given a marking system in the stage of arrest,how to construct a marking system for lawyers in a scientific and reasonable way,implement the theory into practice and make it conform to the current judicial situation.Based on this,the author attempts to analyze why lawyers are full of appeals for the right to read papers when reviewing arrests at present,and to analyze the legal basis of granting lawyers the right to read papers in the stage of arrest approval.Then,from the perspective of comparative law,this paper examines the mechanism of marking papers provided by overseas detention review at present,with an emphasis on discussing how to scientifically construct the marking system for lawyers in the stage of review and arrest,and reasonably connect relevant supporting mechanisms.Specifically,this paper is divided into five parts.The first part analyzes and constructs the background of lawyers' right to review papers in the stage of arrest from the perspectives of legislative provisions and practical attitudes.From review phase arrest the second part,lawyers as marking the feasibility of the right subject,the right toread this right necessity to demonstrate one by one for reviewing arrest stage endow lawyer group on the basis of the legal marking the right,at the same time detection principle is not a secret to defense lawyers the right to limit the reasonable reasons,and lawyers in arrest link the marking on the right will play a great role for curbing custody normalized phenomena;In the third part,the author makes a comparative study of the mechanism of reviewing papers provided by Germany,Japan and Taiwan in the context of comparative law.The fourth part is the system design of lawyers' marking right at the stage of examination and arrest,including the marking subject,marking scope and marking exercise mode.The fifth part is the supporting measures to promote the effective exercise of lawyers' right to review papers in the stage of examination and arrest,including the notification system of the initiation of procedures,the coordination of the period of examination and arrest and the length of examination papers,the disposal of lawyers' passive and idle rights and the relief measures of improper restriction of lawyers' right to review papers.In this way,the establishment of a lawyer's right to review papers in the stage of arrest will be more secure and practical.