刑事诉讼法修正案背景下的律师辩护制度

Shenzhen University The Division of graduation paper ( Design )

Title: Criminal Procedure Amendment lawyer defense system context
Name : Ma Yuting
Major: Law Faculty: Faculty of Law Student ID: 2009031105 Instructor: from left Germany Title: Professor

February 25, 2013

Shenzhen University undergraduate thesis ( design ) Statement of Good Faith

I solemnly declare: thesis submitted ( design ) , entitled " Code of Criminal Procedure Amendment context counsel system" is my instructor 's guidance, independent research results achieved . For this study to make an important contribution to individual and collective , have been included in the text indicate a clear way . In addition, this paper does not contain any other individual or group has authored works published or achievements . I fully realize that this statement of law.

Thesis ( Design ) Author Signature: Ma Yuting Date: February 25, 2013

Table of Contents

Context of Criminal Procedure Amendment lawyer defense system

Abstract lawyers to defend the accused , in a sense is the suspect, the defendant an extension of self- defense . Although the lawyer system is an important component of the criminal justice system parts, but a long time, lawyers commissioned to fulfill their obligations in the process difficult, especially difficult to meet , scoring difficult, hard evidence and other problems. Revised criminal procedure law for lawyers defending the new system was further improved , basically solved the practice reflects a major, prominent problem. At the same time also improve the system of lawyers , more effectively protect suspects and defendants fully exercise the right of defense , reflecting the respect and protection of human rights constitutional principles , to achieve justice. This paper concludes with the protection of our legal rights improvements Countermeasures to expect to find ways to improve our criminal defense lawyer system into improvements.

Keywords Criminal Procedure Amendment right to counsel counsel
Instructor comments :
This question is to focus after the introduction of the new Criminal Procedure Law defense system expositions Overall, this paper gives a deep theoretical exposition , demonstration is more complete and full , rich content , the student is also presented in this paper their views and perspectives to address some of the potential problems. She is also in the whole process of writing a serious and responsible , with the right attitude . But just from a theoretical height is still not enough , we still need to analyze the problem with practice , this is better .

Recommended score : A
Introduction
The right to counsel is the accused entitled , reflecting criminal justice system, the degree of civilization and an important right . China 's " Criminal Procedure " After 1996 changes, the right to counsel in practice be improved to some extent . However, the practice of criminal justice role of the right to counsel has failed to get the proper play . Subsequently, although the 2008 revised " Law on Lawyers ' Lawyer extended the right , however, defended the process all the actual operation of the hard , still fetters criminal defense mechanism of our country toward a more mature direction. These difficulties are not only effective protection for our legal right to challenge , it is a direct result of criminal defense lawyers risk increasing risks. For example in the society of great concern to Li Zhuang case , it triggered a broad discussion about the risk of criminal defense lawyers ' questions and more. Admittedly, there are many causes holds many lessons for our lawyers in particular criminal defense lawyer is not optimistic survival of the state , such as the legal environment , such as legislative defects, such as law enforcement in the various obstacles, such as criminal defense lawyer 's own problems, and so on , but these hysteresis phenomena and causes all point to one important fact , that is to protect the rights lawyer without delay .
2012 Eleventh National People 's Congress adopted the draft amendments to the Criminal Procedure Law . The modifications involve evidence system , court proceedings , coercive measures, investigative measures , defense systems , and other aspects of program execution , and writes to respect and protect human rights. It is noteworthy that the new " Code of Criminal Procedure ," the lawyer major revision defense system , a clear counsel in the investigation stage of the status and role , improve the rights of lawyers involved in criminal proceedings , the corresponding lawyers also provide remedies to make lawyers involved in criminal activities in more convenient. Although each community-wide appraise , but positive side , in which the protection of the rights of lawyers practicing improvement is worthy of recognition.
A defense counsel in criminal proceedings, the roles and rights
( A ) the role of criminal defense lawyers and rights
China 's " Lawyers Law" Article 2 states: "The purpose of this Law lawyer is legally obtained a lawyer , to provide legal services to the public . Defense counsel in criminal cases is to accept criminal suspects and defendants commission or court designated by law as a criminal suspect or defendant to defend , safeguard their legitimate rights and interests of participants in the proceedings . " Throughout our Code of Criminal Procedure concerning the relevant provisions defender liability , experienced defense from physical changes to the program defended . According to " Criminal Procedure Law " Article 32 provides that a lawyer , usually refers to a solicitor in accordance with legal procedures , and after registration , to provide legal services to the public . The lawyer defending the right to participate in a criminal case there are two main sources , one commissioned by the defendants and their close relatives, law firm after re- assigned by the law firm of criminal lawyers in the criminal trial of the accused to defend ; Second People 's Court Specifies the Legal Aid Center , select qualified law firms re- assign criminal trial lawyer in the criminal case as a defendant to defend . a
According to " Criminal Procedure " and " Lawyers Law " the relevant provisions . The rights include the right to counsel and the right to communicate meeting , " Criminal Procedure Law " states: "In the investigation stage , appointed lawyer can meet with the suspect in custody . Involving state secrets cases , lawyers met with the suspect in custody , shall be subject to investigative authorities . " , " criminal Procedure Law "states: " the people 's court for the defense counsel should consult, extract and copy the case of the alleged criminal facts material to facilitate and ensure the necessary time , other defenders of the people 's court permission can consult, extract and copy the case of the alleged material facts of the crime , but the judicial Committee and collegial discussion of records and materials related clues other cases , defense lawyers and other defenders shall consult, extract and copy . "b; investigative power to collect weight of evidence , refers to the process of practicing lawyers enjoyed investigate the case and collect evidence of rights ; court protected the right time , referring to lawyers in the proceedings must have sufficient time to carry out preparatory work, this would certainly make lawyers workflow in the form of impact on the principal protecting the legal rights ; refused the right to defense and the right agent , is a lawyer in certain conditions can refuse to act as criminal suspects, defendants or litigation and other legal matters right agent ; court enjoy the right to the trial stage , according to our law litigation , lawyers in court stage is mainly lawyers have enjoyed the debate in court over it. Debate on the right to counsel is counsel in the trial , the judge 's support, on controversial issues , facts and applicable law , for the right to rebuttal and argument . Lawyers debate through the exercise of the right to put forward and prove their claims, refute each other 's ideas, to help the court to verify the evidence , facts of the case . Debate on the right to counsel is counsel in the litigation is in progress on the contentious issue , the facts and applicable law , the right to carry rebuttal and argument . Improper asked the court to refuse to answer right ; obtain copies of instruments rights litigation case , refers to the lawyers during the proceedings , to have access to , including the indictment , written protest , judgment , ruling, mediation and other litigation documents copy rights ; act right of appeal , counsel refers to the local people 's court of first instance judgment was wrong , the consent or authorization by the parties on their behalf up a people 's Court , called for the case reopened ; right public prosecutor, Law enforcement measures beyond the statutory deadline , there are the rights of the lifting of coercive measures . c
( Two ) protect the rights of criminal defense lawyers significance
Protect the rights of the criminal defense lawyer will help protect the significance of the suspects , the legitimate rights of the accused , ensure justice , protection of human rights to achieve the purpose of the Criminal Procedure Law . Lawyer 's function is based on the facts and the law, to prove the defendant guilty , Zuiqing advice as to safeguard the legitimate interests of the defendant . However, if the defense counsel too weak , it will affect the accuracy of the implementation of substantive criminal law on procedural fairness adversely affected. So protect the rights of defense lawyers for the healthy development of the process of China 's legal system has very important significance.
Criminal defense lawyers to participate in the control and defense both have a very important role. First, the lawyer 's first duty is to explain to the defendant committed the specific legal provisions of relevant laws , provide legal services ; Secondly, the people 's court to provide evidence relating to the case and legal advice ; Finally, a reasonable prosecutor legal confrontation, is conducive to ascertain facts of the case , and ultimately enable the accused to get the most effective defense , to ensure timely and thorough case solved . It is obvious that in a criminal case , the defense 's responsibility is to make every effort to reduce the accused 's complaint , and actively protect the rights of the accused . Strengthening the rights of defense lawyers , so that they can more effectively exercise the right of defense under delegated , it can greatly enhance the effectiveness of the defense , so that both parties really do full and equal fight to get the best defense results .
In addition, help to improve the criminal defense lawyer involved in the initiative to promote the development of lawyering . Criminal defense lawyer is the starting point , but also the cradle of famous lawyer . But in our criminal defense many problems arising under , so that lawyers " Tan punishment pale" , not handling criminal cases , so many lawyers are reluctant to take criminal cases. And criminal defense risks. These two reasons led to lawyers involved in criminal proceedings in recent years showing a downward trend in business . Fifth National Congress of Lawyers " ACLA rights work report," said Beijing lawyer handling criminal cases per capita has increased from 10 years ago was 2.64 down to 0.78 . d defense system in order to have our lawyer normalization of development, to take measures to promote the protection of the rights of defense counsel without delay .

Second, the system of protection of the rights of criminal lawyers horizontal comparison
( A ) common law countries, the right to defense counsel protection system
In common law countries, the defense counsel and the investigative and judicial relatively equal rights , the right to defense counsel so correspondingly more complete , its legislation and practice has much to learn from it. In the foreign law and the UN Convention , the lawyers remarks immunity , occupation secret rights , rights, etc. also have met with more detailed provisions. The following will be the United States as an example :
1 on the right to meet the requirements of the U.S. judicial system meeting the specific procedures set up to protect the suspect, the defendant and defense counsel met with realization of the right , in all criminal prosecutions, the accused enjoys access to a lawyer to defend themselves rights . If the suspect asked a lawyer , the police can only wait until the presence of defense counsel only after questioning. Throughout the interrogation process, the defense lawyer is always entitled to be present. U.S. Supreme Court under the provisions of the Constitution Sixth Amendment finds : "The Executive interrogation police officials must be notified to the suspect , before the start of the interrogation , he is entitled to a lawyer 's help, and the right to remain silent ." Not only so , the suspect , the defendant and defense counsel during the meeting between the conversation is confidential and should guarantee not to be monitored or overheard . e
(2) on the right marking . While the U.S. defense lawyers do not generally view the police docket , but through a variety of channels , the method involves understanding the facts and gather evidence . U.S. scoring defense lawyer right embodied in the Evidence Show System . After examining the case , the prosecutor in pre-trial court should provide sufficient evidence to prove a felony charge can be established grounds . Preliminary hearing counsel must be present through the witnesses for the prosecution lawyers can understand the evidence prosecutors .
3 With regard to the provisions of the right to investigate and collect evidence , the United States formally trial defense counsel in the case , you can make surveys to collect some evidence can be hard to look for evidence of the prosecution of illegal evidence , the evidence that the prosecution will not be accepted. f Secondly, the defense attorney has a considerable number of investigation when the protection of the rights to be able to investigate the facts . U.S. realization of the right of investigation depends on witnesses , prosecutors, judges and other investigators with, so the law also provides for their main activity in the legal obligation to investigate and collect evidence .
( Two ) civil law countries the right to defense counsel protection system In civil law countries , generally provide the suspects in the investigation stage right to defense counsel , questioning suspects the presence of the lawyers have the right to meet with the suspect alone right . In civil law countries, legislation , also provides for the right to silence or embody any person without forcing the spirit of the principle of self-incrimination .
In Germany , the defense counsel in criminal proceedings devoted to the defense interests of the Accused 's legal profession , the German law gives some of its special litigation rights , to a certain extent make up for the weak position of the prosecuted party to strengthen its defenses for the prosecution capability. According to the "German Code of Criminal Procedure ," the provisions of the first lawyers in the exercise of his duties due to be trusted and known to be informed or have refused to make matters right . Secondly, the right to communicate with counsel of the accused person in detention for writing , oral communication, exchanges. Again, a lawyer may not be seized items, such as lawyers and the alleged written communication between people , as well as lawyers the right to refuse to testify other items. Finally, counsel immunity . "When the defense counsel 's behavior are in line with the provisions of the proceedings , that is , or will result in penalties for the guilty defendant has been hindered , but not join their behavior so that the constituent elements of sin penalty ineffective , because their behavior is in line with the administration of justice rules , but also non-judicial crime crime patterns . " and based on " lawyers Law of the Federal Republic of Germany , " the provisions of Article 117 shall not be carried out due to the court hearing and local reputation detention, arrest or trial lawyer. g
In France, on the scoring right , according to the French " Code of Criminal Procedure " on page 114 , paragraph 4 : "In ( juge d 'instruction ) or first interrogation after first hear submissions , counsel fees may be required in order to send him their all documents and evidence files exclusively for their own use, but may not be copied . " whether the primary pre-trial stage , or in the felony court , misdemeanor court proceedings , the French lawyer can go to court docket depository inspect the file of any file. h French lawyer enjoyed greater immunity of speech and criminal immunity , and French by police , prosecutors and the judiciary prohibitions to protect lawyers ' professional immunity. French lawyer 's office or residential rights of its subsidiaries special protection under the law , if not in the legal residence to arrest an offender or defendant ; police and prosecutors, although you can find a crime to counsel residence documents , but not to the attorney 's office looking for clients crime and negligence leads. i

Third, our criminal defense lawyers present situation and problems and reasons
( A ) of criminal defense lawyers present situation and problems
In our criminal proceedings, the criminal defense lawyer has been in a weak position , counsel difficult to adequately safeguard the legitimate interests of the defendant , in which the primary lawyers met with prominent problems is difficult, scoring difficult, hard evidence and other problems, these three difficult but also lead counsel in the criminal proceedings main reason for lower enthusiasm . According to statistics, the "Eleventh Five-Year" period of national criminal defense lawyers were handled 2.45 million , accounting for 24.5% of the total number of legal representation , with an annual handling 490,000 ; 2011 handled 569,000 criminal defense , the National 21. 50000 solicitors per capita is less than 3 .
After the introduction of amendments in the Criminal Procedure Law , " three difficult" issue has improved, but counsel opinions have not been fully respected. Imbalance between prosecution and the defense of which is a prominent criminal defense lawyers phenomenon . In our country 's criminal proceedings , the defense right from scratch, had undergone a tortuous development process . In order to prevent the prosecution on behalf of the country is too strong , which led to the representative of the suspect, the defendant 's lawyer in criminal procedure cases, the relative balance of power , it should be in the defense , the addition of the appropriate authority , in order to achieve the criminal proceedings prosecution and defense balance, thereby accurately punish crimes and protect human rights. In addition , to achieve equality should be criminal prosecution and the defense mechanism of the development of the essential requirement of both parties on the strength of inequality should not be a reason for the unequal legal status of the parties , this power of inequality can be corrected through legal means , in order to achieve balance control debate . New draft Criminal Procedure seemingly added some right to counsel , but it also adds a certain limit , a lot of the prosecution and defense of rights and protection of human rights to achieve equality there is a gap , criminal defense lawyers face occupational risks remain.

( Two ) power to protect our lawyer Causes Problems
Protection of the rights of defense counsel was mainly due to the problems on defense counsel role is not clear, China 's traditional culture of lawyers strong exclusion, lack of exercise of rights defense lawyer system security, legislative concepts dislocation caused by other reasons .
First, the role of defense counsel , is a criminal defense lawyer in criminal proceedings in which the position of the structure . Specific procedural rights of defense counsel , reflecting the defense lawyer in criminal proceedings Role . That is, after defense lawyers involved in criminal proceedings consequent range of issues, such as defense counsel in criminal proceedings, which duty counsel during the proceedings and the public prosecutor, three kind of relationship between the organs , how to deal with conflicts between different functions , etc. These problems are actually related to defense lawyers in criminal proceedings role . However, the defense counsel in criminal proceedings, as well as specifically what role and authority specifically what these three relations in the criminal proceedings legislation and judicial practice does not explicitly reflected.
Second, China 's traditional culture is the exclusion of lawyers strong power to protect the existence of defense counsel caused the problem, China 's lawyer system initially formed during the Spring and Autumn Period , to the Qing Dynasty, foreign lawyers regime began to enter China by foreign law regime impact , the real sense of the lawyer system developed in China . However, due to thousands of years of traditional Chinese culture, the modern system of lawyers are still many drawbacks. Some judicial officers and the general community people still have " presumption of guilt " mentality, status and role of defense lawyers there are some ignorance , prejudice and misconception that criminal suspects and defendants in a battered party , the defense counsel representing the accused the interests of the self-employed, is the spokesperson for the suspect , or even an accomplice , is to speak for the bad guys to help the bad guys skirted the law , is the " Helenians money, help people ward off evil ," the complaint stick is the " gift of the gab , right and wrong ," the hypocrites. j
Finally, in our judicial practice, although defense lawyers have been recognized by society in general , but due to the development of fast and uneven , resulting in different quality team defense lawyers , defense lawyers violate professional ethics and practice discipline and even illegal obstruction of justice the phenomenon is there. Another point , counsel also prevalent smell too strong commercial performance as the main anomie ethical issues, such as increases in charges , exorbitant demands , in order to reward the different matters entrusted into sanliujiudeng , do not think of studying, do not raise the defense capabilities, defense reform and passive coping for lawyers , for some cases are not serious scoring advance through the motions in court , on the principal irresponsibility . Therefore, in the majority of the public mind, the role of lawyers like mercenary businessman , rather than on behalf of the legal person of fairness and justice . In real life, there are indeed very few defense lawyers violate professional ethics , in violation of the law, to help criminals and wrong, falsifying evidence , or even directly involved in the illegal activity . Partial defense lawyer discipline and law problem exists, seriously affected the overall image of lawyers , judicial officers increased distrust of defense lawyers .

Fourth, the new Code of Criminal Procedure to modify the rights for lawyers
( A ) the right of lawyers met to improve
1 , meeting time . Investigation stage of criminal suspects time to hire a lawyer from the existing Criminal Procedure Law , " first interrogated " to advance " the date of the first interrogation ," and the new Code of Criminal Procedure Criminal procedure also removes the existing state secrets involved cases of criminal suspects to hire a lawyer shall be subject to the restrictions investigative authorities , completely absorbed lawyer law.
2 , meeting procedures. Explicitly lawyer with " three certificates " to meet with suspects that " lawyers with lawyers practicing certificate , power of attorney law firm or legal aid certificate and letter " to meet the requirements.
3 , meeting procedures . Modify the meeting procedures to safeguard the defense lawyers met with the suspect, the defendant is not being monitored , the abolition of the current investigation stage of criminal procedure met the investigating authorities under the provisions of present situation can be sent . The general case , the lawyer made directly to the detention center , detention center no later than within 48 hours must be arranged in a certain extent, this provision addresses the practice of lawyers met with the investigation stage must be arranged by the authorities handling the problem, but the detention center " forty-eight hours " grace , in practice, may bring new problems. And " forty-eight hours " Once you become the norm , it will directly affect the investigation, prosecution , trial met the three stages of the overall effect .
4 , the scope of the meeting . The difference is that with the Lawyers Law , the new Criminal procedure despite the elimination of lawyers in cases involving state secrets investigation stage for the meeting shall be approved by the investigating authorities limit, but met with defense counsel during the investigation of endangering national security crimes , terrorist crimes, particularly serious bribery crimes suspects need to go through the investigating authorities permit , in addition does not require the approval of the investigating authorities . Comparison with existing wears have a range of breakthrough, meeting difficult problem to ease tensions . k

( Two ) the improvement of the right to counsel marking
Scoring defense lawyers are expected to solve the problem , the new " Code of Criminal Procedure ," marking the right of lawyers to make the appropriate changes, and Article 38 specifies that " defense lawyer from the People 's Procuratorate for examination and prosecution of the case from the date , you can consult, extract , copy the case docket materials other defenders people 's Court , people 's Procuratorate permission , you can also consult, extract and copy these materials . " Not only will the new Criminal Procedure Law lawyer can consult, extract and copy the case of the alleged criminal facts material to the prosecution phase of early stage , but also expanded the scope of defense counsel 's scoring , provides self- examination and prosecution counsel after inspection , copying the case file materials no longer limited to the litigation documents , technical verification material , so as to keep abreast of all the case law the fact that the whole case to grasp the evidence provides a convenient, for lawyers efficient and convenient exercise of the right of defense provided a guarantee.
1 , and the convergence of the Lawyers Law , defense lawyers to determine the date of the examination and prosecution can consult, extract and copy the case of archival materials , the abolition of the current Criminal Procedure Law is limited to marking instruments and technical verification material litigation provisions .
2 , the absorption of judicial interpretation of the law has been established for the transfer of uncommitted favorable evidence. Namely, " counsel that in the investigation , prosecution during the public security , procuratorate collection prove the criminal suspect or defendant not guilty , the lightest evidence uncommitted , can apply for the People 's Procuratorate , the people 's court and obtain ."
3 , file transfer . New Criminal Procedure Law provides the prosecution to prosecute the case file materials will be transferred to the People 's Court , this provision can be a lawyer scoring problem completely solved. But it also may have some negative effects.

( Three ) the improvement of the right to counsel investigation
Revised Criminal Procedure Law as defense counsel investigation provides the convenience main features: First, the lawyer suspects more relaxed . Article 36 of the current Criminal Procedure Law , the defense counsel from the People 's Procuratorate for examination and prosecution of the case from the date of the suspects in custody may be the same person meets the existing Article 96 of the Criminal Procedure Law , lawyer meets with the criminal suspect , the investigating authorities circumstances of the case and the need to be able to send staff . l in cases involving state secrets , lawyer meets with the criminal suspect shall be subject to the investigation authorities. According to the revised Criminal Procedure Law Article 37 provides that during the investigation , defense lawyers can in custody of suspects met , in addition to endangering national security crimes , terrorist crimes, particularly serious bribery cases lawyers met with the suspect needs investigation authority for approval , the other cases the meeting without investigation authorities, as long as the procedure is complete , the detention center must arrange a meeting within 48 hours .
In addition , the new law defined the defense counsel in the investigation stage of investigation right new Criminal Procedure Law Article 39, 40 and unmodified 41 together constitute a legal counsel investigation fact that it is a fundamental right of lawyers investigation missing for torsion , is a perfect right to counsel , enhanced defense lawyer efforts to help achieve a balanced state prosecution and the defense . As already mentioned the new Criminal Procedure Law of lawyers in the investigation stage of status identification, investigation and evidence collection should include the right to have the inner lining . Specified in the new Criminal Procedure Law to collect specific evidence counsel shall promptly inform the public security organs and the People 's Procuratorate , the public security organs in our country only , the Procuratorate , the army and prisons have security departments for investigation rights, especially the public security organs in criminal proceedings, the only bear criminal investigation functions ; collect evidence if the lawyer did not also have the right to inform the public security authorities and prosecutors obligations. This reflects from one side defense attorneys have the right to investigate and collect evidence , in addition to the first paragraph of Article 41 of the main body of evidence collection is the " defense attorney ." m
However, the right to counsel investigation inadequacies still exist , 1. The 39 new Criminal Procedure Law provides that the defendant not guilty counsel mentioned or Zuiqing uncommitted material evidence , the right to apply to the People 's Procuratorate, the people 's court retrieval . In fact, this is not the true sense of the right to investigate and collect evidence . Because, according to the provisions of recourse authorities not only to collect the prosecution of the object class guilt evidence should be collected at the same time be able to prove their innocence or evidence of minor offenses , which should be imposed by law on the prosecution authorities responsibilities and obligations , If the lawyer forensics investigation occurred during prosecution authorities do not intend to submit a proof of innocence of the accused or the lesser offense of evidence , which is not as prosecution authorities , a fundamental breach of their obligations under the law . In view of this situation when the law on the prosecution authorities to make procedural sanctions. Speaking from another dimension so I focus more on the prosecution lawyers supervisory authorities the right to prevent the prosecution authorities played a hand emboldened the role of abuse ; hand is to ensure the smooth realization of defense counsel the right to a supplementary investigation measures or means . From the legislator 's intention to consider the legislator has stressed that the right to counsel of investigation , from the provisions in the reflection of the reality of the judicial power of the defender of the weak and defects rather , legislators have already begun to consider how to improve the practicality of lawyers the right to balance the power of both parties . 2 . New " Code of Criminal Procedure ," Article 40 of the defendants collected about the suspect has not reached the age of criminal responsibility , is not criminally responsible by law for mental patients and three alibi evidence to the public security organs and people 's procuratorate told obligations shall comply ; I think it helps to safeguard the legitimate interests of the defender . According to the presumption of innocence principle, the burden of proof in criminal cases should be in the prosecution authorities , they provide evidence must reach the criminal facts are clear , there is ample evidence , or through bear the consequences of losing . Relatively speaking if this three defenders to find material evidence , the prosecution can prove that the party can not meet basic standards required by law , timely maintenance of the legitimate interests of suspects . Through the above analysis we can see that the actual meaning of the provisions of this obligation is to improve the litigation rights and litigation counsel position, because these three types of evidence is the key to crime or evidence on whether the conviction and sentencing plays a key role . Crime control achieved with the combination of protection of human rights , which is the law of progress, but in how to collect survey , the lack of clarity of the specification , collection approaches, methods and means there is no provision , is a big flaw . n

( Four ) increased the lawyer litigation rights have been infringed upon extraordinary recourse relief procedures and procedures
Criminal procedure adds new lawyer litigation rights have been infringed upon relief program , that lawyers are entitled to the same level or on a People 's Procuratorate petitions or complaints . Unfortunately, the procedural requirements of this relief was a bit rough, but can be specified People 's Procuratorate shall examine the complaint or complaints , is the case of notice to rectify the relevant authorities , but no specific review procedures , deadlines and " corrective notice" effect for dealing with complaints against the results reconsideration procedures.
Article 42 of the new Criminal Procedure Law , counsel or any other person , shall not help the criminal suspects or defendants to conceal , destroy or falsify evidence or tally confessions , not by threat, enticement for witnesses to commit perjury , and judicial proceedings of other interfering behavior. Although this provision shall comply with lawyers set of obligations, but also set up to protect the right to counsel . Judicial practice , lawyers with the investigating authorities in the process of handling the specific criminal cases , often due to different positions in which conflict , there may be a little inattentive lawyer practicing unexpected risks . In this regard , the new Criminal Procedure Law provides counsel suspected criminal violations of the foregoing , it should be handled by the counsel for the investigation undertaken by institutions other than the investigating authorities handled counsel is a lawyer , it shall promptly notify his law firm or belongs lawyers Association . This provision changes the public authorities the right to " investigate and deal with both criminal suspects , and investigating lawyer " situation , but coupled with the Bar Association Law Firm activist channels to secure participation in criminal proceedings for lawyers , bold safeguard rights of clients effective legal protection. o
In addition , the new Criminal Procedure Law Article 115 provides that the parties and counsel , legal representatives , stakeholders and their staff for the judiciary , one of the following acts , the right to appeal or complain to the authorities . Meanwhile, Article 47 , or agent ad litem that the public security organs , People 's Procuratorate , the people 's court and its staff impede their exercise their procedural rights , the right to the same level or on a People 's Procuratorate petitions or complaints , these provisions in the clear lawyer can the judiciary and its staff violations filed a complaint against , but also a clear violation of the rights defense lawyers in the remedies , and thus full protection of the criminal law correctly exercise the rights . p

Five , my lawyer system perfect Countermeasures
( A ) to achieve balance prosecution and the defense
China 's current Criminal complaint with the defense relationship is an unbalanced relationship of confrontation . Since both sides of the inequality and lack of locus standi appropriate procedural rules , leading to the defense can not be effective against the prosecution indictment . Although the trial proceedings in the Criminal Procedure Law tried to create a structure on equality between prosecution and defense against the environment, but unfortunately only for the defense of legislative provisions provide a relatively equal chance of confrontation , that confrontation on opportunities equality, rather than a real sense of ability to fight equality.
Prosecution and the defense in criminal procedural justice concept of equality is the basic requirement is a prerequisite to ensure procedural fairness . Prosecution and defense litigation equality means equality of both defense and prosecution , litigation equal rights and obligations . However, in reality the practice of criminal proceedings , on the strength of the prosecution and defense at a distinct unequal status . Because state prosecution on behalf of the prosecution in criminal proceedings on the allocation of resources has the country 's human , material and financial resources as a powerful backing, and the defendant and his defenders such as lawyers rely on weak personal power to exercise their rights. The gap between this power directly affect the status of action of both the prosecution and defense , and then determines the final outcome of the proceedings .
Achieve equality of prosecution and the defense mechanism is an essential requirement in criminal proceedings , the prosecution and defense on the strength of inequality should not be a reason for the unequal legal status of the parties , this power of inequality can fix through legal means . New draft Criminal Procedure seemingly added some criminal defense lawyers rights, but also adds a certain limit , a lot of the prosecution and defense of rights and protection of human rights to achieve equality there is a gap , criminal defense lawyers face occupational risks remain. Such as lawyers can meet with the parties to narrow the scope , the lawyer is not easy on the parties in the procedure , criminal procedure 38 may still be used as a basis for retaliation lawyer . The Code of Criminal Procedure to modify , the local prosecution and the defense forces have some improvement . But overall, far away from the prosecution and the defense of equality gap . q

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