중국 수사기관의 피의자 신문절차상 변호인 참여권 도입가능성 검토

Abstract

There is a legal maxim that ‘History of Criminal Procedure Act is the history of right of defense expansion’. The right of suspect and defendant investigated under suspicion to get a help from an attorney who is a legal expert to protect their right and freedom against the government’s exercise of power is crucial. To implement a fair criminal procedure, equal or even weapon is required between attorney and persecuting person. In investigation stage, it is necessary to emphasize the principle of due process and enhance the status of suspect in terms of human rights guarantee. The right of defense is the critical in practicing the due process during the investigation process and the key point in the right of defense is the right to participate for the attorney. Thus, the Chinese government should revise the Criminal Procedure Act to introduce the right to participate for attorney during the subject. Interrogation. To promote the possibility of introducing the system, following systematic improvements should be made in advance. First, the principle of investigation should change from ‘Principle of Statement’ to ‘Principle of Evidence’. The Chinese government should supplement evidence system, proceed investigation based on scientific investigation method, and improve ‘Principle of Statement’ depending on confession of suspect to ‘Principle of Evidence’. However, if the investigation agency focuses on actual evidence and utilizes technical investigation methods for collecting evidence, such concern for negative influence would be solved. Second, the Chinese government should develop attorney’s knowledge and qualification and should establish a system for verifying the infringement of Attorney-at-Law Act. Attorney-at-Law Act in China also stipulates the regulations under the same purposes and the attorney should be qualified with ethical knowledge and professional qualification as the attorney. Thus, in legislation of guaranteeing the right to participate for attorney, such illegal act should be punished severely to minimize the side effect from having attorney to participate in interrogation. Third, having attorney to participate in subject interrogation is a sensitive issue and significant reformation. Thus, the Chinese government should promote it gradually instead of rushing into completion in present stage. According to Article 20 of Criminal Procedure Act in China, the regulations of case jurisdiction rules as follows. Cases such as ① crime threatening national security ② crime of terror activity ③ and crime of life sentence and death penalty have serious negative influence on the society. Thus, intermediate people’s court proceeds trial and the superior public safety agency is in charge of investigation. Thus, the Chinese government can review on having the attorney participate in the subject interrogation for above cases preferentially. Then, after accumulating experiences, the Chinese government can consider about introducing the right for attorney to participate in investigation of other criminal cases gradually.