Article 96 of China's current Criminal Procedure Law stipulates: "A criminal suspect may hire a lawyer to provide him with legal advice, complaints and accusations after being interrogated for the first time by the investigation organ or from the date when compulsory measures are taken. If the suspect is arrested, the lawyer hired can apply for bail pending trial. In cases involving state secrets, the criminal suspect's employment of a lawyer shall be approved by the investigation organ. The entrusted lawyer has the right to know the charges charged by the criminal suspect from the investigation organ, meet the criminal suspect in custody and learn the case from the criminal suspect. When a lawyer meets a criminal suspect in custody, the investigation organ may send personnel to be present according to the circumstances and needs of the case. For cases involving state secrets, lawyers meeting with criminal suspects in custody shall be approved by the investigation organ. " This provision has changed the practice that lawyers can only participate in litigation at the trial stage in the old criminal procedure law, and advanced the time for lawyers to participate in criminal proceedings to the investigation stage. It was once considered as a sign that the criminal suspect's right to defense was strengthened and the lawyer's role was further played. However, judging from the judicial practice in recent years, lawyers' right to appeal, accuse and apply for bail pending trial in the investigation stage is ineffective. The difficulty of meeting a lawyer cannot be solved. When the lawyer met, the presence of investigators seriously hindered the expression of the suspect's free will. Incidents in which investigation organs infringe on the rights of lawyers and criminal suspects frequently occur, which leads to a sharp decline in the number of criminal cases handled by lawyers, and the human rights situation of criminal suspects is facing great damage and crisis. The fundamental reasons for this situation are the lack of judicial protection of lawyers' rights, the serious imbalance between the status of prosecution and defense, and the failure of investigation organs to fulfill their obligations without corresponding sanctions.

First of all, the law lacks a judicial guarantee mechanism to realize lawyers' rights.

Any right is the ability to make others undertake obligations and give others coercive power. This compulsion must be based on the national judicial guarantee. Without judicial guarantee, there is no realization of rights. In order to ensure the realization of citizens' rights, the modern rule of law takes a restrictive approach to the exercise of power. Because "everyone with power tends to abuse power and use it to the limit." This is an eternal experience. "In order to protect citizens' right to personal freedom from infringement by investigation organs, the laws of western countries stipulate that investigation organs should accept judicial review when implementing personal coercive measures against citizens. After the British police make an arrest without a judicial warrant, they should generally be handed over to the magistrate's court within 24 hours. In Japan, the total time limit from arresting or receiving a suspect without a license to requesting a judge to approve detention should not exceed 72 hours. Article 1 of the amendment to the Constitution of the United States stipulates that no law shall be enacted to abolish judicial decisions and deprive people of their private rights and public rights. Article 7 of the Belgian Constitution stipulates: "Personal freedom shall be guaranteed. No one can be arrested except flagrante delicto unless ordered by a judge. This order must be announced at the time of arrest or at least within 24 hours. " The constitutions of Germany, Poland, Spain and Greece also stipulate that prisoners should be handed over to the court for interrogation within 24 hours or released within a certain period of time or changed to judicial imprisonment, and informed so that they can reply. In addition, article 6 of China's Constitution of the Republic of China (1923) stipulates: "The people of the Republic of China shall not be arrested, imprisoned, interrogated or punished except according to law. When people are detained, they can ask the court to take them to the court for review through a protection order according to the law. " 193 1 during the period of political training, the Constitution of the Republic of China stipulates: "The organ that executed the arrest and detention shall, within 24 hours at the latest, transfer the person suspected of committing a crime to the judicial organ for interrogation. I or others may also request an arraignment within 24 hours according to law. " The judicial review of the personal coercive measures of the investigation organ is essentially to examine whether the reasons for the criminal suspect's defense and the reasons for the lawyer's appeal, accusation and application for bail pending trial can be established. As long as the lawyer's claim is established, it will be supported by a neutral judicial decision. At the same time, there is a time limit for the realization of any right. If there is no time limit for the realization of rights, it means that there is no right. The establishment of judicial review mechanism provides a definite time limit for the realization of lawyers' rights (the time limit is from the time when criminal suspects are subjected to physical coercive measures to the end of judicial review of measures), which avoids the obstacles to the realization of lawyers' rights in time limit. Therefore, the establishment of judicial review system is the guarantee for the realization of lawyers' rights.

The establishment of judicial review mechanism is not only the product of the rule of law, but also the requirement of litigation itself. The investigation organ takes personal coercive measures against citizens, and lawyers object to the coercive measures. Appeal, accusation and application for bail pending trial are essentially disputes of interests. If there is a dispute, there should be litigation; If there is a lawsuit, there should be a judicial adjudication mechanism that transcends the interests of the parties and the parties. This is the requirement of balance of interests.

Although China has determined the general plan of governing the country according to law in the form of constitutional amendment. However, as a common law, the criminal procedure law does not reflect the content and requirements of the rule of law. The exercise of criminal investigation power in our country is still the principle of arbitrariness in investigation. Personal coercive measures such as residential surveillance, bail pending trial and detention are completely decided by the investigation organ according to the needs of the case and are not subject to judicial review. Although the arrest of a case investigated by a public security organ must be approved by a procuratorial organ, this review is an administrative review, not a judicial review. Judicial power has the characteristics of neutrality. When examining arrest cases, the procuratorial organ considers whether the criminal suspect's behavior constitutes a crime, whether it is necessary to arrest, and whether the prosecution's evidence and opinions can be adopted by the court when prosecuting, regardless of the balance of interests between the investigation organ and the criminal suspect. What's more, the power of the procuratorial organ to approve and arrest self-investigated cases is completely decided by itself and does not accept the supervision of the judge. At the same time, although investigation is regarded as a part of criminal proceedings in China, there is no judicial adjudication mechanism at the initial and most intense stage when the conflict of interests between the state and citizens occurs, which leads to the lack of special accepting institutions for lawyers to appeal, accuse and apply for bail pending trial, and the lack of compulsion and time limit for the realization of rights. It is difficult to balance the interests of criminal suspects, lawyers and investigation organs. Without the balance of interests, there is no justice; Without justice, it is impossible to realize rights.

Second, the serious imbalance between the status of the prosecution and the defense is the direct reason why the lawyer's rights cannot be realized.

The realization of lawyers' rights should not only be guaranteed by judicial mechanism, but also establish the equal legal status of both prosecution and defense. If the status of the two sides is not equal, there will be no rights at all, which will only lead to violence from one side to the other. Article 96 not only does not restrict the power of the investigation organ according to the principle of rule of law, but gives the investigation organ the right to examine and approve the exercise of lawyer's rights. This practice of letting the investigation organ be both an athlete and a referee, a party and a judge violates that "no one is allowed to be a judge in his own case, on the contrary, it is illegal to be a judge in his own case." "No one can be a referee in a case that has anything to do with himself or is biased by himself." "No one can be a judge and a party at the same time ..." Due process of law established by legal norms, etc. , leading to a serious imbalance between the status of the prosecution and the defense. Lawyers lack confrontation with administrative power and are restricted by administrative power, which makes the provisions on lawyers' rights ineffective.

Due to the imbalance between prosecution and defense, the main rights that criminal suspects should enjoy in the investigation stage are not set, and the set rights are useless. 1. In order to pursue the balance between prosecution and defense, the state has the right to investigate, and criminal suspects should also have the right to investigate. However, Article 96 of China's Criminal Procedure Law does not give lawyers legal status and investigation power. 2. When lawyers exercise the rights of agency, appeal, accusation and application for bail pending trial, the investigation organ either refuses to reply or refuses the lawyer's opinion without reason, which leads to one of the four major problems in the implementation of the Criminal Procedure Law-extended detention (the other three problems are extorting confessions by torture, persecuting lawyers and abusing commutation and parole in the implementation process). Some undecided criminals have been imprisoned for several years, even more than ten years. 3. Lawyers have the right to meet criminal suspects, but the difficulty of meeting lawyers has not been solved. The lawyer's right to meet in the investigation was shirked by the investigation organ for various reasons and could not be realized. It is by no means a minority that lawyers can't see criminal suspects in the investigation stage. The defects of the system have led to the resistance of lawyers and even law firms to handling criminal cases. Whether a criminal suspect can get the help of a lawyer is a sign to measure the human rights situation of a country. However, most of the criminal suspects in the investigation stage in China do not have the help of lawyers, and this proportion will be higher and higher. 4. The lawyer met with the criminal suspect's investigation organ and sent personnel to be present, which seriously hindered the expression of the criminal suspect's free will. Article 8 of the United Nations Basic Principles on the Role of Lawyers clearly stipulates: "All people who are arrested, detained or imprisoned should have adequate opportunities, time and facilities, and receive a visit from a lawyer without delay, eavesdropping, inspection and complete confidentiality, and such consultation can be conducted within sight but not hearing of law enforcement officers." As a legal and cultural achievement of mankind, this provision has never been implemented in China.

The reasons and manifestations of the imbalance between the prosecution and the defense caused by the provisions of Article 96 are: 1, which emphasizes the supremacy of power in the relationship between power and law. When the interests of the state and citizens conflict, the effective means to seek the balance between prosecution and defense is to restrict state power through law. However, we regard law as a tool to realize power, instead of defining it as a source to restrain power and realize fairness and justice. This leads to the lack of judicial review and strict applicable conditions for the enforcement of compulsory measures by investigation organs, which leads to the arbitrary exercise of investigation power. This kind of power is not strictly restricted by law, which will inevitably lead to the imbalance of the status of the prosecution and the defense.

2. When there is a conflict between power and rights, advocate that power takes precedence. This is mainly reflected in the fact that lawyers are not allowed to intervene when the investigation organ interrogates the suspect for the first time and takes compulsory measures against him; Lawyers' right to appeal, accuse and apply for bail pending trial can only be put forward to the investigation organ; For cases involving state secrets, the criminal suspect's employment of a lawyer must be approved by the investigation organ; When a lawyer meets a criminal suspect, the investigation organ may send personnel to be present; Lawyers meeting with criminal suspects involving state secrets shall be approved by the investigation organ. This obviously puts administrative power above civil rights and violates the basic principle of priority of rights required by modern rule of law. "To a large extent, it is precisely because the rule of law protects private citizens from the growing trend of administrative agencies invading the private sphere that the rule of law is of such great significance at present." Rights are only bound by law, not by power.

3. When there is a contradiction between public interest and personal interest, one-sided emphasis is placed on the idea that personal interest obeys public interest and pursues the maximum efficiency of justice. However, "if a regulation only wants to serve the public interest and refuses to defend the personal interest, then it cannot call itself a law." "Maximizing efficiency means the most judicial atrocities" because the core of due process protection is individuals and their inalienable rights.

4. Article 96 of China's Criminal Procedure Law does not regard the criminal suspect as the subject of litigation at all, but as the object of litigation and the object of attack. This makes it impossible for lawyers serving criminal suspects to obtain the legal status of the subject of litigation. A system that does not treat people as the main body has no human rights. Not to mention the balance between power and personal interests. "If a public administration system only focuses on results and not on human rights, it may lead to dictatorship and oppression."

Third, the code lacks sanctions for investigators who fail to fulfill their obligations.

Any legal norm consists of two parts, namely, behavior patterns and consequences. The exercise of any right is based on the fulfillment of certain obligations by others. There is no obligation without rights, and there is no right without obligations. The consequence of mandatory legal norms is sanctions, and only with sanctions can mandatory legal norms be effectively implemented. Only the performance of obligations can guarantee the realization of rights. It can be said that sanctions are the core of legal norms. Without sanctions, there would be no legal norms. The purpose of sanctions is to ensure compliance with and enforcement of the law. Edwin Patterson believes: "Every law has a form of legal sanctions in a sense, and sanctions are a necessary feature of every legal system and every legal provision." George del? Vecchio said, "Without coercion, there is no law." The rights of lawyers to appeal, accuse, apply for bail pending trial and meet with criminal suspects stipulated in China's criminal procedure law are all based on the corresponding obligations of investigation organs. The criminal procedure law does not stipulate the legal consequences that the investigation organ should bear if it fails to perform its obligations. So it is not surprising that it is difficult for lawyers to meet. In order to solve this problem, the Supreme People's Court, the Supreme People's Procuratorate, the Ministry of Public Security, the Ministry of National Security, the Ministry of Justice and the Legislative Affairs Commission of the National People's Congress Standing Committee (NPCSC) issued a document on the Criminal Procedure Law of People's Republic of China (PRC): Article 1 1 of the Provisions on Several Issues in Implementation stipulates: "... for cases that do not involve state secrets, Lawyers don't need approval when meeting criminal suspects, and they can't refuse to approve cases involving state secrets because they need confidentiality in the investigation process. If a lawyer proposes to meet the criminal suspect, he shall arrange a meeting within 48 hours ... ". This provision seems to be a mandatory provision for the investigation organ to arrange lawyers to meet with criminal suspects, but it has not brought any vitality to solve the problem of difficult lawyers to meet, because the legal consequences that lawyers should bear when they fail to perform their obligations are not formulated in the design of this specification. Sanctions should exist in all mandatory legal norms. Citizens who fail to perform their obligations should be punished, as should investigators who fail to perform their obligations and hinder the exercise of citizens' rights. As a remedy for rights, this has long been stipulated in the laws of relevant countries in Europe and America. There are three main types of supervision. One is to impose a fine on the official in charge, and double the punishment and deprive him of his official position if he commits another crime. This fine is borne by the victim, which is clearly stipulated in the English court law; Second, the Greek Constitution stipulates the crime of unauthorized imprisonment and compensates the victims for all losses; Third, it is generally stipulated that certain responsibilities should be borne. Such as the constitutions of Spain and Mexico. Sanctions are the life of law. Without sanctions, there is no guarantee of rights.

Although the revised Criminal Procedure Law strengthens the position and role of lawyers in criminal proceedings, stipulates that lawyers can intervene in the proceedings at the investigation stage to provide legal assistance to criminal suspects, and further clarifies and strengthens lawyers' litigation rights at all stages of litigation, in comparison, China's current legislation still has the following shortcomings:

1, there is legislative discrimination. Article 38 of the Criminal Procedure Law stipulates that a lawyer conceals or fails to report; Whoever destroys or forges evidence shall be investigated for criminal responsibility according to law. Article 306 of the Criminal Law stipulates that defenders and agents ad litem destroy evidence, forge evidence or obstruct testimony. This practice of setting separate charges for lawyers is very rare in the legislation of all countries in the world. Because of the destruction or forgery of evidence in litigation, both the prosecution and the defense may happen. In practice, the existence of this discriminatory provision gives some public security and judicial organs the opportunity to abuse their power, and provides an effective means for them to take professional revenge against defense lawyers when the entity defense fails or loses its power. It can be said that it is the existence of these regulations that makes some lawyers think that criminal defense is dangerous and unwilling to accept entrustment.

2. There are too many restrictions on the right of defense lawyers to investigate and collect evidence. It is manifested in: (1) the restriction of self-evidence collection by defense lawyers. According to the current law, lawyers can intervene in litigation during the investigation stage, but lawyers in the investigation stage can only provide legal help to criminal suspects and have no right to collect materials and investigate and collect evidence. In the stage of examination, prosecution and trial, although the law stipulates that criminal suspects and defendants can hire lawyers to defend them, and lawyers can collect materials related to this case from witnesses, victims or their close relatives, witnesses provided by victims or other relevant units and individuals, the law also stipulates that the collection of materials from witnesses or other units and individuals must be approved by these people. When collecting materials from the victim or his close relatives or witnesses provided by the victim, it must also be approved by the people's procuratorate or the people's procuratorate. This means that when a lawyer collects evidence as a defender, once the above-mentioned personnel disagree or the judicial organ does not allow it, the defense lawyer's memorandum of rights cannot be realized. (2) Restrictions on requesting evidence. According to the current law, when defense lawyers are unable to collect evidence by themselves, they can apply to the procuratorate or the court for collecting and obtaining evidence, or they can apply to the people's court for notifying witnesses to testify in court. If the defense lawyer thinks it is necessary for the case, and the procuratorate and the court don't "think it is necessary", the lawyer can't obtain evidence. (3) Restrictions on marking. According to the current law, defense lawyers can consult, extract and copy the litigation documents and technical appraisal materials of the case from the date when the case is transferred for review and prosecution, but they cannot consult, extract and copy all the materials. Even after the people's court accepts the case, it can only see the catalogue of evidence, the list of witnesses and the copy of the main evidence, and other evidence materials are invisible.