Research On The Rights Of Chinese Defense Lawyers

"The history of the development of criminal procedure is the history of the expansion of the defense right",whether it is the criminal rights of the criminal suspects and the defendants themselves in accordance with the Constitution,or whether the defense lawyer accepts the criminal suspects and the extension of the ownership of the defendants,the right to defense is the result of a trial that seeks to balance procedural justice and substantive justice based on confrontation with the criminal accused's public power.The attention and research on the rights of defense lawyers should be traced to the origin of the investigation of the defense lawyer system.From the horizontal dimension of the international world,the Anglo-American law system has a very far-reaching history in the grant and protection of defense rights under the adversarial litigation model.The defense system under the litigation system in Japan has also established a relatively complete system for the protection of the rights of defense lawyers since the resettlement of the "defense officer" system and the reform of the judicial system at the beginning of the 21 st century.From the perspective of the initial development history of defense lawyers' rights,since the first criminal procedure law was replaced in 1979,the right to defense has entered a stage of rapid development.With the revision of the Criminal Procedure Law in 1996 and 2012 to 2018,the enhancement of the concept of the rule of law and the pursuit of judicial reform goals,the right of defense,especially the right of lawyers,has received more and more attention and research.The substantive confrontation of the lawyer's defense right under the equality of prosecution and defense is also louder.The research on the rights of defense lawyers in my country needs to be analyzed in the context of judicial reform from the perspective of reality.In particular,after the establishment of the supervision system in our country,the respondent faced the problem of lack of defense power in the supervision process,and the corresponding defense lawyer's right could not be exercised.It can only be known when the case is transferred to the public prosecution office for review and prosecution.The facts of the case brought a real dilemma to the rights of defense lawyers.Furthermore,after the establishment of the guilty plea punishment system,whether the role of the defense lawyer in the plea punishment process is the same as that of the defense lawyer in the plea bargaining process of the Anglo-American legal system,and is responsible for arguing with the prosecution from the perspective of the defendant's physical interests.The litigation function is also a hotly discussed issue in academia.In the practice and operation of China's guilty plea punishment system,duty lawyers provide legal services including criminal interviews,accusedpersons' guilty plea punishment procedures,including interviews,examination papers,and communication with public prosecutors,but they do not have the status of defenders.How to conduct effective ownership connection with the defense lawyers involved in the litigation process at the trial stage,and to ensure that it does not adversely affect the defendant's entity's interests due to the different participants throughout the litigation process,is also a practical issue that should be studied.In order to investigate how the rights of defense lawyers should be perfected in practice from a more realistic perspective,this article collects and analyzes the operational data in practice.As far as the investigation phase is concerned,through statistical questionnaire recovery,the problem of finding lawyers difficult to meet is still highlighted In some cases,new reasons for refusal to meet have emerged.At the same time,the investigation and evidence collection at the investigation stage is still in a state of defense lawyers.At the same time,it also faces the practical problem that the investigated witnesses do not cooperate,from the exercise of rights and the objects of the exercise.The double obstacles restrict the true use of defense lawyers' right to investigate and obtain evidence.For this reason,it is particularly necessary to construct the right of marking in the investigation stage and the right of lawyers to be present during investigation and interrogation.This is a feasible strategy for the investigation efficiency and the protection of human rights while balancing and balancing.As far as the stage of review and prosecution is concerned,the defense lawyer‘s right to read the case cannot be fully exercised,and the right to investigate and obtain evidence is still the domain that most defense lawyers dare not dare to get involved in.The actual problems reflected in the investigation.Therefore,it is necessary to construct the evidence discovery system in my country's actual criminal litigation,so that the defense lawyers in the pre-trial stage can specifically engage in substantial confrontation with the prosecution.At the same time,in reconstructing the power of investigation and evidence collection,the "Sword of Damocles" above the defense lawyers in Article 306 of the Criminal Law should be eliminated,and the object of obtaining evidence from investigation,the method of obtaining evidence through investigation and evidence collection and the right to obtain evidence from investigation should be eliminated.Relief and other aspects of the reconsideration of the investigation and prosecution power of the stage of reconsideration.At the trial stage of the criminal procedure,the problems reflected in the questionnaire recall were still “difficult to exclude illegal evidence”,“difficult to apply for witnesses to testify in court” and “defense opinions” "The difficulty of adoption",the difficulties of the new three difficulties are concentrated in the trial stage,which also means that in the last stage of the criminal procedure,the exercise of the rights of the defense lawyer is still difficult,and the confrontation between the defense and the prosecution on the basis of equality There are still fundamental obstacles.Therefore,at the trial stage,it is the defense lawyer who focuses on perfecting the substantive trial process under the procedures of fully guaranteeing the principle of direct speech and substantive evidence and cross-examination,and at the same time exerting and deepening the criminal defense method of procedural defense to ensure the effective realization of effective defense.