Study On The Implementation Procedures Of Listening To The Advice Of Counsel

Criminal Procedure has been amended by the fifth meeting of the National People’s Congress on March14,2012, and has decided to implement from January1,2013. The new law has brought the protection of human rights into the formal legal provisions, and make it to be sure through a series of system program. One of the highlights of which is to adjust the timing and extent of the lawyers involved in criminal proceedings, adding a new specialized procedure of listening to the advice of counsel. The new Code of Criminal Procedure require the relevant authorities to listen to the advice of counsel in six provisions,--the stage of examining and approving standards of arrests, before the conclusion of the investigation, the prosecution phase, the hearing before the death penalty reviewing stage. The procedure of listening to the advice of counsel is an important part of the defense system. By the specialized programs, the defense lawyer exchanges message on substantive issues and procedural issues of the case with the relevant authorities, and the defense lawyer can deeply participate in the criminal proceedings. And in the same time, the law can urge the relevant authorities to carry out their own duties, timely solving the issues related to the criminal proceedings to protect the interests of the prosecution of persons in the maximum extent possible. Of course, the provisions of the new Code of Criminal Procedure about listening to the advice of counsel also have some disadvantages. For example, first, it is only a simple, conclusive principle. The new law just need the relevant authorities listen to the opinions of the lawyers in a different stage of the proceedings. However, there is no specific program requirements and no remedies set. Secondly, the language used in the new Code make the counsel to be responsible for to publish his advice. This procedure in practice is likely to lead to frustration.The papers I have written make a study against the background, the meaning over the procedure of listening the advice of counsel, and over the shortage of the new law. And then I want to design solutions against the inadequacies of the provisions of the new Code of Criminal Procedure. The article is divided into four parts, the main content is as follows:The first part of the article briefly discusses the legislative background and significance of the procedure of listening to the advice of counsel, pointed out that the new Code of Criminal Procedure adding the new program is the need of inadequacies of the1996Code of Criminal Procedure, and after the first modification of the Code of Criminal Procedure, there are many difficulties in practice that need the defense system to be further perfected, as well as the judicial theory has been developed. The second part of the article discussed the nature and significance on the procedure of listening to the advice of counsel. It is a comprehensive right to defense. The relevant authorities not only need to listen to the entity defense opinions, also need to listen to defense opinions on procedures. The third part of the article analyses on specific operating procedures about listening to the advice of counsel. The fourth part of the article point out that complementary measures should be established in order to safeguard the implementation of this program, and the advice of being listened should be substantive comments. In this part, I first set two kinds of relief mechanism—the program sanctions and the sanctions out of program according to the current level of the judicial. And then I think the perfecting of the defense system is the long-term goal of judicial reform, and also is the fundamental measure to implement the procedure of listening to the advice of counsel.