Research On The Relationship Between Investigation And Defense From The Perspective Of Criminal Justice Reform

The "Decision of the Central Committee of the Communist Party of China on Comprehensively Advancing Several Major Issues Concerning the Rule of Law" adopted by the Fourth Plenary Session of the 18 th CPC Central Committee,proposed major reforms and deployments,such as "promoting the trial-centered litigation system reform" and "improving the system of pleading guilty in the litigation system".This has ushered in official implementation of a new round of criminal justice reform,coupled by a series of laws and regulations and normative documents,and pilot work in some areas.On the basis of summarizing relevant pilot experience,the revised Criminal Procedure Law of 2018 has translated the results of institutional reforms into laws and plays a theoretically supportive role in the process of judicial reform.As far as the relationship is concerned,the protection and regulation of the right to defense is an important part of the current criminal justice reform,which determines its direction and success.Although the norms concerning the relationship between investigation and defense have been continuously improved and refined,there are still many inconsistencies with the requirements and expectations of criminal justice reform,which makes it difficult to regulate and effectively exercise the right to defense in judicial practice.Under such circumstances,the author examines the reasons for the unsatisfactory relationship between China's existing investigation and defense by exploring the two modes of such relationship,namely confrontation and cooperation,explores the legislative experience in related fields in foreign countries,and proposes the institutional plan for the protection and standardization of the right to defense.This paper consists of five parts.The first part introduces the impact and content of criminal justice reform on the relationship between investigation and defense in recent years and combs through the background and content of the current reform.On the basis of whether the criminal suspect is denying the crime or not,this paper divides the investigation and defense mode at the investigation phase into two kinds,namely confrontation and cooperation,further elaborating the characteristics and significance of these two modes.The second part introduces the current empirical status of the relationship between investigation and defense in China.In order to fully explain the practice of the relationship between investigation and defense and the positive exploration and breakthrough in some research areas in this regard,this part employs a large number of charts and pictures to demonstrate more vividly and truthfully the experience in judicial practice and existing problems.The third part analyzes the reasons why the existing relationship is not ideal.This paper concludes that on one hand,there is a gap between the two sides in concept and the criminal justice reform requirements.The investigative organs have not yet truly recognized the "trial-centeredness" while the defense lawyers have violated the professional ethics and practiced illegally.On the other hand,the existing legal system does not meet the expectations of criminal justice reform due to problems such as a lack of institutional guarantees,the guilty plea incentives and the insufficient role of lawyers in the investigation stage.The fourth part draws on the legislative provisions and judicial experience of the representative countries of the two major legal systems with regard to the relationship between the investigation and the defense.Compared with China,these countries have adopted the rule of law earlier and established a more complete system in related fields,thus providing a blueprint for China to further guarantee and standardize the right to defense.The fifth part proposes the systemic plan for safeguarding and standardizing the right to defense from the perspective of the relationship between investigation and defense according to the general requirements of China's criminal justice reform.In the general proceedings,lawyers should enjoy greater defense rights in terms of materiality and procedure,while in the confession and punishment procedure,lawyers should play greater role and perform objective and true obligations in the investigation procedure,realize the restriction of public power to protect the right of defense,standardize the right to defense in accordance with laws,so as to establish a fair and cooperative relationship between investigation and defense.