In this regard, in 2019, Lv Hongbing will submit proposals and suggestions to effectively safeguard lawyersright to practice in the stage of arrest and prosecution, including the right to investigate and collect evidence, the right to review papers and so on. He believes that arrest is the most severe compulsory measure to deprive the suspects of personal freedom. He suggests that the procuratorial organs should inform the defense lawyers immediately when they accept the cases of examination and approval of arrest, establish a system of hearing and examination, listen to the opinions of both sides of the investigation and the defense, and make a decision on whether to arrest or not on this basis.
Advance the lawyers right of marking papers to the stage of examination and arrest
In terms of safeguarding lawyersright to practice, Lu Hongbing believes that lawyers have the right to investigate and obtain evidence in the investigation stage, but the legal provisions on this right are not clear and relatively vague. In practice, lawyers are difficult to grasp, and often think that if there is risk, they will not exercise it, said Lu Hongbing. He suggested that the criminal procedure law and the lawyer law should be further improved to clearly define the lawyers right to investigate and obtain evidence in the investigation stage, specify the way to exercise the right to investigate and obtain evidence, such as self-investigation and application for investigation, and make enforceable mandatory provisions on relief measures when the right to investigate and obtain evidence is infringed.
In addition, the Criminal Procedure Law stipulates that during the period of investigation, the defense lawyer may learn from the investigating organ about the suspects charges and the relevant circumstances of the case and give his opinions; the defense lawyer may consult, extract and copy the files of the case from the day when the peoples procuratorate examines and prosecutes the case. According to Lu Hongbing, it can be seen that defense lawyers have the right to review the case only when they examine and prosecute. However, it is basically difficult for them to be informed of the case from the investigative organs at the investigative stage, or they know little about it even though they are told, and they also lack the support of the specific file materials for their understanding. He suggested that lawyersright of marking should be clearly advanced to the stage of examination and approval of arrest. On the one hand, lawyers can play a defensive role in the process of examination and approval of arrest, so that prosecutors examination and approval of arrest can be made clear at the same time. On the other hand, when examining and prosecuting, they have relatively sufficient time to understand the case and put forward more targeted opinions and suggestions to prosecutors.
Examining and approving arrest should listen to the opinions of the defenders
Lu Hongbing also suggested that the law should be amended to clarify that when the Peoples Procuratorate examines and approves arrests and before the investigation organ finishes, it should listen to the opinions of the defenders, regard listening to the opinions of the defenders as the legal duties and responsibilities of the peoples procuratorates and investigation organs, and refine the operational procedures, clarify the legal responsibilities and stipulate the mandatory effect.
In addition, Lu Hongbing believes that arrest is the most severe compulsory measure to deprive the suspect of personal freedom, which should be made by judicial personnel after careful examination of arrest requests of investigation organs and hearing the opinions of criminal suspects and defense lawyers. Therefore, it should be clearly stipulated that the procuratorial organs should inform the defense lawyers immediately when they accept the cases of examination and approval of arrest, establish a hearing and review system, listen to the opinions of both the investigators and the defenders, and make a decision on whether to arrest or not on this basis. At the same time, the defense lawyer should be given the right to review the arrest files so as to make the defender know more about the case and evidence and express his defense opinions pertinently. Through the reform of the litigation system of arrest approval, the closed and one-way arrest review mode will be reformed into an open and personal litigation mode, giving full play to the defense function of lawyers, refraining from biased listening and realizing concurrent listening, so as to effectively safeguard human rights and safeguard judicial justice.