On Our Lawyer Involved In The Plight Of The Investigation Stage And The Way Out

"The history of Criminal Procedure Law is the history which the defendant right to expand". The core of the development of right to defense lies in the constant extension of the lawyer participating in the criminal prosecution as well as the constant extension of lawsuit right. After the Criminal Procedure Law was amended in 1996, the time which lawyer was admitted to participate in the criminal prosecution was advanced to the detection stage, which definitely affected the entire criminal prosecution, such as balanced the goal of Criminal Procedure Law between control crime and safeguard human rights. It became one of the chief signs that the criminal prosecution was democratic, civilized, and advanced. However, as a result of all sorts of reasons, lawyer involving the detection stage doesn't work like the people expected. In view of this, this article starts with the difficulties of lawyer involving the detection stage, and gives a demonstration of the reasons of it, then proposes preliminary ideas for consummating the lawyer's right to counsel in the detection stage.This thesis is divided into three parts.The first part: the difficulties of lawyer involving the detection stage in our country. The author elaborates it from five aspects: 1. The status of our country's lawyer is ambiguous. The point at issue is that lawyer whether has right to defendant or not in the detection stage. 2. It is difficult for our country's lawyer to meet criminal suspect in the detection stage. For instance, it is needed to receive application to meet the crime suspect, and the investigative organs don't allocate time for meeting promptly. 3. It is difficult for our country's lawyer to know the facts of the case when he meets the crime suspect. 4. The lawyer doesn't have the right to investigate and collect the proof in detection stage. Some important evidences that are advantaged to the crime suspect cannot be collected promptly in the detection stage, which is unfavorable for the lawyer to defend. 5. The lawyer's legitimate rights are difficult to be safeguarded.The second part analyzes the cause of the difficulties. At first, the lawsuit idea drops behind. 1. Our country usually pays more attention to entity than process and ignores the unique value of process. 2. There still have the thought about presumption of guilt and pettifogger. Second, structure of investigation is not reasonable. (a)The investigation is short of needed judicial review and delegation system. (b)The Criminal Procedure Law doesn't endow the criminal suspect with the right of keeping silent. (c)The lawyer entrusted by criminal suspect to involve the investigation doesn't have the status of defender, and his rights are limited in law. The last, it analyzes the reasons form two aspect: the tradition and the reality. The guiding principles of China's Criminal Procedure Law is state departmentalism. According to this guiding principles, the main values of Criminal Procedure Law lie in combating crime and maintaining social stability. The others lawsuit values such as safeguarding the legitimate rights of parties are less important than the interest of state. In the practice, on the one hand, our country has been in the high rate of criminal cases, the material and financial resources of the public security organs aren't able to fulfill the needs. The investigative organs have been with tremendous stress. On the other hand, the quality of polices is relatively poor.The third part gives attention to consummate the lawyer's right to counsel in the detection stage. 1. It is needed to endow the lawyer with the right to counsel in the detection stage. 2. It is needed to safeguard the lawyer with the right to meet criminal suspect in the detection stage. (a) The lawyer should have full freedom to meet the criminal suspect. (b) The number and time of meeting are unrestricted. (c) When the lawyer meets criminal suspect, the person on the spot who are assigned by investigative organs should be in the position that can see but hear nothing. 3. It is needed to endow the lawyer with the right to investigate and collect the proof as well as apply for preservation of the proof. 4. It should introduce the legal aid system in the detection stage. The subject of appointing defender should be the lawyer. 5. It is needed to remove the article 306 of the Criminal Law and endow the lawyer with the criminal privilege of immunity in the detection stage. Concrete contents are as follows: occurring chiefly in lawyer's operation activities; criminal responsibility and eliminating other situations by law.