The study of the right of the accused for assistance of counsel under investigation phase―Focuses on “right of counsel”, “right of presence”, “right of contact” and “right of inspection”

• Main Authors: Chi-Long Chen, 陳志隆
• Other Authors: Shan-Yin Cheng
• Format: Others
• Language: zh-TW
• Published: 2009
• Online Access: http://ndltd.ncl.edu.tw/handle/50586582070945047231

碩士 === 中原大學 === 財經法律研究所 === 97 === With respect to the operational procedure of process of criminal proceedings, the investigation proceedings are absolutely more important than the trial proceedings, the reason is that mostly the accused or suspect are not quite familiar with the law, and in the beginning of investigation proceedings they are inevitable to face the court prosecutors, police institutions who have sufficient law knowledge and practical experience; further, mostly the accused or suspect have no capability of evidence collection, particularly when they are constrained. Hence, considering the unequal conditions of both parties, and the protection of defense right, the right for assistance of counsel is to be offered. Besides, after the new version of criminal proceeding act entered into effect in September of 2003, the space of defense activity becomes larger than ever before, and the defense counsel gets to play a more important role. Even though there have been crucial change of the system aspect, it still lacks substantial corresponding-measures for the event, resulting in the arising of legal doubts frequently in practice. Through the analysis and review of relative problem, we attempt to ensure the right for assistance of counsel of the accused and suspect to larger extent; it is the motive and purpose of this essay. Our research methods include “Documentary review”, “Comparison and analysis”, “Comprehensive sorting”. Regarding the content of this article, the chapter 1 is for instructions, outlines of the rest chapters are as follows: In chapter 2, the essay at first discusses lawyer right deeply in terms of its constitutional position, as there are still many defective points in the defense system and practice with the criminal proceedings act. The modification and practice of criminal proceedings act may have standard norm to conform to only depending on the foundation of fundamental right. In chapter 3, we attempt to probe into the function of lawyer right and purpose difference by examining the investigation proceedings and trial proceedings respectively, to criticize and review those limits on lawyer right imposed by the criminal proceedings act currently. In chapter 4, the essay highlights a number of important sub rights of lawyer right, namely “right of counsel”, “right of presence”, “right of contact”, “right of inspection”, this chapter is divided into four sections for deeper analysis. With regard to the defects at present, it presents a couple of opinions and suggestions for modification of law with references from foreign systems and theories. Chapter 5 is for summary, which summarizes the key points mentioned in earlier chapters; next is to detail and integrate the proposals for law modification regarding the constitutional position of lawyer right and important sub rights as descriptions in chapter 3 and chapter 4, thereby clearly outstanding the research summary.