The Construction Of The Right To Review Files For Criminal Complaint Lawyers

Based on the principles of due process,equality of arms,protection of human rights and litigation efficiency,the attorney's right of access to the file in criminal retrial petition procedure should be protected by legislation.The effectiveness of the agency is determined by the degree of protection of the attorney's right to review the file,which directly affects the complainant's ability to respond to court review,affects the ability to participate effectively in the petition process and has a positive impact on the outcome of the procedure,thus affects whether the basic rights of the sentenced person can receive relief in a timely manner.However,China's current legislation does not make clear the attorney has the right to review papers in criminal retrial petition procedure.Under the mode that the petition is under the jurisdiction of the final court.Therefore,the application to read and copy papers is almost impossible to be approved by the court in practice.Just by the vague memory of the sentenced person and the contents contained in the judgment,the petition agent can't find the major defects of the case,can't collect and put forward the key evidence to shake the effective judgment,can't explain in the petition materials that the case meets the review standard,thus enter the retrial procedure.In other words,the failure of the attorney's access to the file results in the failure of the agency,and many cases are therefore detained in the petition procedure for many years.The practice of the attorney's access to the file in criminal retrial application of Taiwan region is similar to that in mainland China.The criminal retrial application is under the jurisdiction of the final court.In addition,the right of the attorney who applies for retrial is not guaranteed by the "Criminal Procedure Law" of Taiwan region.Whether the attorney can read files depends on whether the procuratorial organ that in charge of the file approves it.In order to improve this situation,the "Supreme Court"and the "Supreme Administrative Court" of Taiwan region stated in their judgment that in order to protect the right of the adjudicated to know the information in the file,the attorney appointed by the adjudicated can apply to the procuratorial organ in charge of the file for inspection of the relevant file based on the purpose of criminal retrial application.Based on the cases of "Supreme Court" and "Supreme Administrative Court",the exercise scope,exercise mode and relief approach of the review right are gradually clear,and the review practice of the petition attorney has been effectively improved.Unfortunately,only by the way of case law,the right to review the papers is guaranteed,but the protection is still insufficient.Due to the lack of support from the criminal procedure law,it is not uncommon that the procuratorial organs refuse to follow the opinions of "Supreme Court" and "Supreme Administrative Court" and refuse to allow the attorney's access to papers.Mainland China and Taiwan region belong to the same civil law system.They have many common points in the legislative purpose and legal process design of the criminal retrial system,and the obstruction of the retrial application attorney's access to papers are very similar.Therefore,China can learn from the positive experience of attorney's access to file in the criminal retrial petition procedure in Taiwan region,take the lessons of Taiwan region as a warning to protect the petition attorney's review right in the criminal procedure law.Accordingly,the text of this paper is divided into four parts.The first part expounds the theoretical basis of the criminal retrial petition attorney's access to the file;the second part analyzes the current situation of the legislation and practice of the attorney's access to the file of criminal retrial petition procedure in China;the third part mainly introduces the specific system of the attorney's review right in the criminal retrial application in Taiwan region,and analyzes the pros and cons of protecting attorneys'access to the file by the method of case law;the fourth part puts forward the idea of constructing the basic legal system of attorneys'access to the file in the criminal retrial petition procedure.