Suggestions On Lawyers-on-site At Interrogation In China

The Criminal Procedure Code revised in 1996 has amended the lawyer-defense system. Particularly, some revolutionary provisions on lawyer intervention into criminal procedural can be found in this code. In this code, Article 96 provides, "when a criminal suspect is firstly interrogated or adopted compulsory measures by the investigative authority, he may appoint a lawyer to provide legal advice or as an agent in appeal and arrest, if a criminal suspect is arrested, the appointed lawyer could apply bail for him." According to this, one lawyer may intervene into investigation when a criminal suspect is firstly interrogated or adopted measures by the investigative department, he can provide legal assistance for the criminal suspect. However, the intervention right of the lawyer in the investigation is rather limited, especially in short of the lawyers-on-site system, so that the lawyer can not intervene in the investigation stage timely and effectively and the right of criminal suspects cannot be defended as far as possible. When the lawyer is not present at interrogation, torture, fraud and other illegal phenomena occurs as the direct legal consequence, which is unfavorable to the protection of human rights and deviates from current international development tendency in criminal procedure law.Firstly, this thesis demonstrates the doctrinal basis for the right of lawyers-on-site at interrogation, analyzes present legislation and judicial experience in investigation procedure, and searches the reason for shortage of the right of lawyers-on-site at interrogation in China. Secondly, it researches to necessity and feasibility on establishment of the right of lawyers-on-site at interrogation in china, and clarifies merit and significance of this establishment in criminal procedural legislation and judicial experience. Finally, it presents some suggestions on how to establish the system of lawyers-on -site at interrogation in our country, based on our situation and a review of provisions on the system of lawyers-on -site at interrogation in other countries. This paper is composed of four chapters.Chapter 1 demonstrates theoretical foundation of the right of lawyers-on-site from four aspects, including the principle of innocent presumption, due process, balanced value, and principal party in procedure. Establishment of lawyers-on-site system in China is an inevitable requirement to safeguard the legitimate rights of criminal suspects, to grant suspects as principal party in litigation, to ensure the prosecution and the defense in equal status, and to realize procedural justice.Chapter 2 discusses the legislative deficiency of lawyer-on-site in China, and analyzes reasons of shortage of this system from traditional factors and practical situation.Chapter 3 illustrates the necessity on establishment of lawyers-on-site at interrogation in China from seven perspectives, such as protection of human rights, foundation of real entity, efficiency improvement, control and supervision of the investigation, promotion on equality between prosecution and the defense, and so on . Through the inspiration from provisions of lawyer-on-site system in other countries, the analysis and evaluation of the objections to this system and practical difficulties , we demonstrates the feasibility on the right of lawyers-on-site at interrogation in China.Chapter 4 is the main part in this paper, it gives some suggestions on legislation on lawyers-on-site at interrogation in China, it regulates the lawyer at interrogation defender of action position and regulates the right and duty of present lawyer, and also discusses the content of the right of lawyers-on-site, the application scope, exertion procedures. Finally introduces the protective measures of the right of lawyer-on-site.