On The System Construction Of Lawyers’ Intervention In The Investigation Of Duty Crimes

The Supervision Law of the People’s Republic of China was officially promulgated and implemented in 2018.According to the Supervision Law and its interpretation,there is no clear legal basis for whether the respondent can obtain the help of a lawyer during the investigation of the duty crime,in addition,with the current practice in supervision,lawyers are not allowed to enter the investigation of the duty crime.There is no unified conclusion on whether the investigated person should obtain the help of a lawyer during the investigation of the duty crime.Although most scholars advocate that lawyers should be allowed to provide legal assistance at this stage,they conducted a thin theoretical analysis mainly from the "protection of human rights" and "due process" two sides,and did not propose a complete system construction to realize the right to lawyer’s help.By absorbing and summarizing the current relevant academic research achievements and combining with the supervision practices,this paper demonstrates the necessity and basis for obtaining the help of lawyers of duty crimes,in order to construct a reasonable and feasible system of right to lawyer’s help.This paper mainly contains three parts:The first part aims to demonstrate the necessity for the respondent to obtain the help of a lawyer during the investigation of the duty crime.The main point of view in academia on the necessity analysis of the right to lawyer’s help at the investigation stage of duty crime is that,whether it is an international human rights guarantee document,or the legal regulations that allow lawyers to help at the criminal investigation stage in many countries,it has been shown that the respondent obtained lawyer’s help can be in line with international human rights protection standards,helping to achieve visible justice,and strengthening the legitimacy of the investigation procedures.The author believes that this kind of analysis is not sufficient,and can also try to demonstrate the necessity of the right to lawyer’s help from a new perspective,such as the reasonable extension of lawyers’ help objects in the supervision and investigation stage,and the protection of rights and interests of non-state workers suspected of duty crimes;The respondent’s access to lawyers helps to ensure the harmonization of legal system;the provision of legal assistance by lawyers is an important measure to strengthen the substantive reform of court trials.The second part aims to demonstrate the normative basis for the respondent to obtain the help of lawyers during the investigation of the duty crime.The right to lawyer’s help at the investigation stage is not unreasonable.This article proposes that the attorney’s entry in the investigation of duty crimes has sufficient normative basis:First,the Constitution stipulates that "the state respects and protects human rights." To ensure the full implementation of the Constitution,this principled provision should also be included in the Supervision Law.Secondly,from the perspective of "the exercise of power is supervised",the exercise of power by the supervisory authority should be supervised and restricted,and the legal assistance activities provided by lawyers at the investigation stage are another effective way to supervise the exercise of the power of supervision and investigation.The third is based on the inherent connection between the Supervision Law and other basic laws,especially with the Code of Criminal Procedure,which clarifies that the respondent’s assistance with a lawyer during the investigation of the duty crime can be achieved "naturally." Finally,from the outstanding contributions of our country’s international human rights protection in recent years,we can see that our country is actively fulfilling its international human rights protection obligations.At this time,allowing lawyers to enter the stage of investigation is fully justified.The third part is mainly to construct a reasonable and specific legal assistance system for the respondent at the investigation stage of the duty crime.This part is the core content of this article.On the basis of analyzing the necessity and justification of the right to lawyer’s help,it puts forward the idea of the lawyer’s help system at the stage of duty crime supervision and investigation.First of all,clarify the prerequisites for lawyers to provide legal assistance.The relative separation of the supervision and filing procedures is the prerequisite for the respondent to obtain the help of lawyers.Only when the procedure is independent can the lawyers entry the investigation stage smoothly.Secondly,the way of lawyer’s help.It is recommended to adopt the "duty lawyer add entrusted lawyer" approach to fully protect the lawful rights and interests of the person under investigation.Thirdly,when does the lawyer can provide help.In order to achieve a reasonable balance between high-efficiency anti-corruption and the rule of law anti-corruption,it is recommended to adopt the "principle add exception" approach,that is,in principle,"the day when the respondent is questioned for the firsttime or the detention measures are taken",the exception is the "reasonable restriction" on the lawyer’s right to help according to the degree of social harm in the case.In the fourth place,the reasonable limitation of the right to lawyer’s help.Based on the investigation of lawyers’ comprehensive practice qualities,this article creatively proposes to set reasonable restrictions on the lawyers’ right to help according to the social harm degree of the case: On the one hand,when suspected of "major corruption crimes",the respondent can obtain legal assistance when he has been arrested;On the other hand,it is recommended to set up a pre-procedure when suspected of "especially significant corruption crimes",that is,lawyers should obtain permission from the supervisory authority when they meet with persons under investigation of particularly serious corruption and bribery crimes during the investigation phase.In order to enhance the operability of the above methods,the author also proposes to quantify the standard of conviction and sentencing of the case,and raise the standard of the amount of money involved in the case,to prevent the supervisory authority from randomly restricting the lawyer’s interview on the grounds of suspected "(especially)major corruption crime".In addition,the rights and obligations that lawyers should enjoy during the investigation of duty crimes are also important aspects that must be considered when designing the system.In order to implement the above system construction,the law should be amended in time or relevant legal interpretations should be made.It is a more direct way to realize the right to lawyer’s help of respondents through clear and detailed legal legislation.