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The System of Counsel in Pre-Trial Proceedings

Author: ZhuWenZuo
Tutor: LouBoKun
School: Zhejiang Technology and Business University
Course: Procedural Law
Keywords: Pre-trial proceedings The right to counsel Protection of human rights The prosecution and the defense balance
CLC: D925.2
Type: Master's thesis
Year: 2010
Downloads: 52
Quote: 0
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Abstract


The right to counsel is necessary for the protection of criminal suspects the right to defense can be fully exercised . Two-tiered system , such as Britain, the United States, France and other Western countries to focus on the prosecution and the defense against the whole process in criminal proceedings , the right to counsel to be throughout the entire criminal proceedings . In contrast, in China refers to the right to counsel is a lawyer authorized by the parties to accept or People's Court specified , in accordance with the law for the maintenance of the suspect , the defendant legitimate rights and interests and provide proof of the suspect , the defendant not guilty , Zuiqing or mitigate waive the rights to the materials and opinions of criminal responsibility . According to this concept , the more complete counsel in fact only focused on the trial stage , there is a serious lack of counsel in the pre-trial proceedings . The one hand, pre-trial proceedings in the investigation stage does not exist as a basis for criminal proceedings the right to counsel , the modification of the Code of Criminal Procedure to increase early intervention of lawyers , means that the lawyer has the right to a defense lawyer right to help in the investigation stage , the meaning of this modification from legislation to strengthen the protection of human rights in the criminal suspects , but in judicial practice, but making the right to counsel degradation is not conducive to the suspect in the entire criminal proceedings the right to defense exercise , so that the status of lawyers in the investigation stage because this legislative provisions more fuzzy , greatly increases the risk of lawyer's practice . On the other hand , in the prosecution phase of the pre-trial proceedings , the Code of Criminal Procedure clearly a lawyer has the right to a defense , the right to counsel under the range is much smaller than the real demand , lawyers to limit the exercise of the right to defense a lot , and thus can not give full play to the role of lawyers . In this way not only makes a far cry from the Criminal Procedure rules and international practice , while the pre - trial proceedings , the defense has been in a weak position , both the prosecution and the defense seriously lame status quo has seriously affected the fairness of the criminal proceedings , hindering the China 's judicial reform process . In this paper, the exercise of the right to counsel and protection perspective, the basis of the prosecution and the defense balance in order to protect the legitimate rights and interests of the suspects as the goal , combined with our practice seriously consider the above questions by referring to international practice , put forward to improve our trial procedures for the solution of the right to counsel , to contribute to China 's judicial reform .

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CLC: > Political, legal > Legal > Chinese law > Procedural Law > Code of Criminal Procedure
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