Study On The Lawyer's Right To Defence During The Course Of Investigating

In criminal suit, it represents state power and government's power to investigate right , procuratorial work right and jurisdiction, because the enforcement of state power and government's power is apt to cause the infringement of individual rights, so, in order to find the a kind of restriction state power and strength of government's power, avoided the excessive enforcement of these public power, produced the criminal system of advocacy. Without criminal suit which lawyer participated in, or the lawyer can't enjoy the lawsuit right completely in criminal suit, will waver on the foundation of the justice. The core of counsel's right to defence is to ensure the lawful rights of the defendant , suspect not to be encroached on . And it is the right to defence which ensures their counsels to ensure suspects , key of right of accused. This is because the right to defence of criminal suit of suspect , defendant is mainly assisted and finished by the counsel. So criminal suit human rights ensure core of idea guarantee, defender of right promptly to suspect, defendant, right guarantee of counsel correctly. With the gradual infiltration to the structure of criminal suit of our country of lawsuit mode of party's doctrine, counsel's function in ensuring party's right to defence will be bigger and bigger. It is the focus that the law circles and judicial circle pay close attention to that among them investigate the lawyer's question of right to defence of stage. Give lawyer can exercise right to defence fully among criminal suit , realize law of advocate stipulate " lawyer operation is protect by law " really, ensure lawyer's right and thus really ensure the lawful rights of the suspect , defendant. The first part of this text is the gradual progress of investigating the right to defence of a lawyer of stage and current situation . The system of advocacy is a result that the human society developed into certain stage, originated from the ancient period of republic of Rome that the slave made first. Meanwhile, the right to defence has been gone through from small and weak to the prosperity too, expand to the evolution of investigating stage progressively from getting involved in trial stage first . The modern system of advocacy, especially lawyer's system of advocacy, is a result of American-European bourgeois-democratic revolution. The countries , such as France , U.S.A. ,etc. have legally established lawyer's system in succession through bourgeois revolution. And after system systematized lawyer having adversary system in " criminal suit code ", Napoleon of French, one year, lawyer system got general development in the capitalist country. Second part Investigate the disappearance of right to defence of a lawyer of stage. First of all , is it get involved criminal suit nameless to has not it divide into to have in lawyer to display at lawsuit status, to this question, there is no unified final conclusion so far in law circles and judicial circle, this is it treat lawyer investigate stage get involved criminal suit have unanimous practice that is support consulting in practice to result in. Certainly, without lawsuit position, the corresponding right is more unable to refer to, this differs greatly with current method in the world. During the course of investigating secondly, of our country current criminal procedure law plead to lawyer authority make too much, the right that no matter meet, investigate and collect evidence right or lawyer's right present , all all sorts of restrictions , causing the lawyer to perform practically no function during the course of investigating, it isout-of-balance seriously to accuse of debating the strength of both sides, the suspect , defendant have difficult with the guarantee legitimate rights and interests. No wonder a lawyer claims sighing with deep feeling: The lawyer gets involved in criminal suit ahead of time, it is a trap which is paved with the flower. Therefore we difficult to understand the national bar association for concluding the deep meaning that " the lawyer safeguards the rights in the committee ". The third part It is the correction which investigates the right to defence of a lawyer of stage. Chapter this have to " criminal procedure law " existing to lawyer lawsuit status , meet right , whether and " criminal law" above 306 lawyer is it testify the guilty regulation to impair, propose that the following corrects the measure. Legislate to stipulate clearly that a lawyer should enjoy " defender's " identity to investigate stage, give the defence right corresponding with " defender's " identity at the same time , and define the accusing party's corresponding obligation; Abolish " pairs of approval " regulation, is it ensure lawyer meet right intact to exercise in this stages to come; Cancel the 306th provision that the lawyer impaired and testified of " criminal law " guiltily, to reduce the operation risk that a lawyer participate in criminal suit, improve lawyer's enthusiasm of participating in criminal suit work. The fourth part Investigate the strengthening and ensuring of right to defence of stage. " criminal procedure law " is it investigate stage lawsuit of lawyer right very few to give 1996, but really there is right of investigating and collecting evidence of the actual meaning, go over examination papers right , interrogate present right and apply for suspect or personal scrutinyright of defendant include . Compare with the current the lawyer's defence right of stage of investigation in the world, have analysed our country in investigating stage that the right to defence of a lawyer legislates and should be strengthened and perfected further in this chapter. Including should investigate and collect evidence right , go over examination papers right is it investigate stage participate in lawyer to reach criminal suit to entrust to, apply for personal scrutiny right of suspects or the defendant , to contain the more problematical " extorting a confession by torture " phenomenon in the society of some time at present for it. Certainly it is far from being enough that the light is perfected by legislating, must set up corresponding judicial censorship , to ensure the rights of the lawyer and defender, this third party needing to introduce neutrality --The court comes to check that investigate the legitimacy that each side investigates the behavior of stage. Certainly must also let the idea that " the lawyer is a just bodyguard " rooted in the hearts of the people in the society in idea, because the lawyer only draws the society and supports this nutrition, could fulfil one's own duty better , serve society!...