abstract

Criminal procedure is an activity to realize the national penalty right, which embodies the sharp conflict between national interests and individuals (criminal defendants). The basic mode of modern criminal procedure is based on the separation of prosecution and trial, and the defendant has the right to defend himself. The three basic functions of prosecution, defense and trial coexist, among which the prominence of the defense articles reprinted by China Example Network is not only the objective requirement of human rights protection, but also the necessary embodiment of democratic, rational and civilized litigation. In order to implement the defense system and realize judicial justice and the rule of law in criminal proceedings, the role of defense lawyers cannot be underestimated. Therefore, protecting the rights of defense lawyers is an unavoidable topic for lawyers to play their roles effectively.

The first part of this paper takes the gap between the status and rights of lawyers in China's criminal proceedings and international standards as the starting point to explain the defects in the protection of lawyers' rights in China's criminal proceedings.

The second part of this paper focuses on the confusion faced by defense lawyers in China's criminal proceedings and the incompleteness of the rights protection mechanism, indicating that the existing defense mechanism will lead to the serious consequences of lawyers' reluctance to participate in criminal proceedings, and emphasizing that the existence and continuation of this phenomenon will run counter to the goal of a country ruled by law.

In the third part of this paper, based on the obstacles existing in the rights of defense lawyers in criminal proceedings, the author briefly analyzes the reasons for the obstacles and puts forward some suggestions to truly protect the rights of lawyers.

Finally, the author points out that the protection of defense lawyers' rights in criminal proceedings is restricted by factors such as litigation value orientation and the quality of judicial personnel. And macroscopically influenced by the national political, economic, cultural and social exchange values. However, it is an international trend to strengthen the protection of defense lawyers' rights in criminal proceedings, which is consistent with the goal of building a country ruled by law, thus showing that there can be no real rule of law without lawyers and a perfect mechanism for protecting lawyers' rights.

catalogue

introduce

First, the gap between the current situation of defense lawyers' rights protection and international standards.

Second, the analysis of the current situation of the exercise and protection of the rights of defense lawyers.

(A) Analysis of the current situation of lawyers' litigation rights and their protection

(B) lawyers' personal rights protection and current situation analysis

Third, the improvement of the protection mechanism of defense lawyers' rights.

(A) the improvement of the protection of lawyers' litigation rights

(B) the improvement of lawyers' personal rights protection.

Four. Concluding remarks

refer to

cite

Modern criminal procedure is based on the separation of prosecution and trial and the right of defense of criminal suspects and defendants, and the three basic functions of prosecution, defense and trial coexist. Among them, the defense function is particularly important, which is not only the embodiment of litigation democracy and civilization, but also the objective requirement of human rights protection. It is no exaggeration to say that the degree of defense lawyers' rights protection is directly related to the maintenance of the defendant's legitimate rights and interests and the rule of law process in China. Because of this, all major countries in the world are constantly protecting and strengthening the right allocation and safeguard measures of defense lawyers in criminal proceedings. In China, the Criminal Procedure Law and the Lawyers Law stipulate that lawyers participate in criminal defense, and the United Nations treaty on the basic principles of lawyers' role has been signed, which has strengthened the protection of their rights compared with the past. However, due to the influence of traditional civilization and litigation values, the mechanism of defense lawyers is not perfect, and the current situation of their rights protection is even more worrying, which makes lawyers' criminal defense shrink and the legitimate rights and interests of criminal suspects cannot be protected as they should. In view of this, the author wrote "Analysis on the Protection of Defense Lawyers' Rights" in order to improve the protection system of lawyers' rights in China.

Professor Long Zongzhi, a famous scholar in China, pointed out that "the international standard of criminal justice is actually the international standard of human rights protection in criminal proceedings". On the protection of basic rights established by the United Nations for criminal proceedings and criminal judicial activities in various countries. In China, defense lawyers enjoy a series of litigation rights in the stages of investigation, prosecution and trial. However, the specific difficulty of exercising these rights is far from the international standards, which urgently needs to be improved.

First, the gap between the current situation of defense lawyers' rights protection and international standards.

As we all know, the number and protection of defense lawyers' rights in the investigation stage is the premise and foundation to measure a country's judicial humanitarianism, and "whether defense lawyers are allowed to intervene in the investigation procedure and what litigation rights are given to them" has become one of the standards to measure the degree of democracy and civilization of a country's criminal procedure system in modern times. In the investigation stage, the gap between China's lawyer's rights protection and international standards is mainly reflected in:

(A) the identification of lawyers in the investigation stage

Article 1 of the United Nations Basic Principles on the Role of Lawyers requires lawyers to defend defendants at "all stages of criminal proceedings". Article 96 of China's Criminal Procedure Law stipulates that lawyers can intervene in the investigation stage, but not defense lawyers, but nondescript legal aid lawyers.

(2) Lawyers' right to meet and communicate.

Article 8 of the Basic Principles on the Role of Lawyers stipulates: "All persons who are arrested, detained or imprisoned should have sufficient opportunities, time and facilities to receive visits, contacts and consultations from lawyers, without being eavesdropped, inspected and kept completely confidential. Such consultation can be carried out within the range that law enforcement officers can see and hear. While affirming lawyers' right to meet and communicate, China's Criminal Procedure Law restricts the number, time and way of meeting. For example, restrict the investigation agency from sending people to the scene.

(3) The right of lawyer to be present

The Basic Principles on the Role of Lawyers stipulates that lawyers have the right to be present when the defendant is tried in the state litigation machine. However, China's criminal procedure law not only does not stipulate the right of lawyers to be present, but stipulates the right of investigators to be present when lawyers meet, which is far from international criminal justice.

(4) the lawyer's right to read papers

China's criminal procedure law stipulates that cases can only be consulted at the stage of examination and prosecution. Moreover, in practice, because the location, time, frequency and so on of lawyers' marking papers are not clearly defined, this right of lawyers is like a dead letter. Even in the trial stage, the lawyer's right to read papers can only know part of the evidence, and his understanding of the case is very limited and narrow.

(5) Lawyers' right of investigation

It is an international practice to give lawyers the right to investigate and collect evidence. However, China's criminal procedure law has imposed various restrictions on lawyers' right to investigate and collect evidence: for example, lawyers can investigate and collect evidence from relevant units or individuals with their consent, and lawyers need the consent of the procuratorate or the court to collect evidence from victims or witnesses provided by victims, which makes lawyers' right to investigate often ineffective.

Second, the analysis of the current situation of the exercise and protection of the rights of defense lawyers.

(A) Analysis of the current situation of lawyers' litigation rights exercise and protection

In order to ensure that defense lawyers can fully perform their defense functions and complete their defense tasks, criminal procedure laws all over the world have given defense lawyers extensive litigation rights. However, in China's criminal judicial practice, the rights and protection of defense lawyers are very embarrassing, not only the litigation rights are restricted and bound, but even their personal rights are illegally violated, which has become a bottleneck restricting the defense function. The obstacles and confusion of defense lawyers in the process of exercising their rights are mainly reflected in the following aspects.

1, it is difficult to meet.

(1) It is difficult to meet lawyers, which is manifested in the fact that the judicial organs often prevent defense lawyers from meeting criminal suspects during the investigation stage on the grounds of confidentiality. China's criminal procedure law clearly stipulates that a criminal suspect can hire a lawyer to provide legal help after the first interrogation by the investigation organ or the day when compulsory measures are taken, and the entrusted lawyer can meet the criminal suspect in custody. Article 1 1 of the Regulations of the three ministries and commissions of the two houses of Congress stipulates that "for cases that do not involve state secrets, lawyers do not need to obtain approval to meet criminal suspects". However, because there is no specific stipulation about which cases are confidential, some investigation agencies label the cases as confidential and set up customs cards when examining and approving them, which makes the lawyer's right to meet meaningless.

(2) Strictly control the time, frequency and mode of meetings. In judicial practice, some public security and procuratorial organs stipulate that lawyers should not meet more than twice; Some stipulate that each meeting should not exceed 45 minutes, while others require lawyers to submit an outline of the conversation before the meeting, and the meeting place should be equipped with eavesdropping and monitors. What's more, in some places, lawyers are not allowed to talk about the case during the meeting. What's the significance of setting up the lawyer's right to meet? The above practices have seriously violated the provisions of the Criminal Procedure Law.

(3) Changing residential surveillance into disguised detention, the right of lawyers to meet me is further restricted. Article 24 of the "Regulations" of the three ministries and one committee of the two houses stipulates that "a criminal suspect under residential surveillance needs no approval to meet his lawyer". However, in practice, defense lawyers must obtain the consent of the investigation organ and have personnel on the scene to monitor if they want to meet the person under surveillance, otherwise they are not allowed to meet, which further erodes the lawyer's right to meet.

It is difficult to find a guarantor.

Article 5 1~52 of the criminal procedure law stipulates that criminal suspects, their legal representatives and close relatives have the right to apply for bail pending trial, and the two houses of parliament have corresponding explanations. However, in practice, there are many applicants and few successful ones. There are three reasons for this.

(1) Set a time checkpoint. According to Article 96 1 of the Criminal Procedure Law, lawyers can only apply for bail pending trial after the criminal suspect is arrested. When defense lawyers ask for bail pending trial, they are often told that the suspect has been detained in criminal detention and has no right to apply for bail pending trial without arrest.

(2) set up money barriers. According to article 2 1 of the regulations of the first Committee of the three departments of the two houses: "if you apply for bail pending trial, you cannot ask the guarantor and pay the money at the same time. What the judiciary does is to either agree with "property insurance" but not "people's insurance", or use both, and the amount is staggering and scary. This has led to a crisis in people's trust and hope for lawyers.

(3) delay. According to the regulations, if a lawyer applies for bail pending trial, the organ that has the right to decide shall give a reply on whether or not to agree within seven days. However, when the defense lawyer makes a request to the relevant judicial organs, there is often no result or reply, which makes it common to prolong his detention.

3. It is difficult to mark papers.

The United Nations "Basic Principles on the Role of Lawyers" stipulates: "The supervisor has the obligation to ensure that the lawyer can have sufficient time to consult the relevant materials, files and documents owned or managed by the place on the spot, so that the lawyer can provide effective legal aid to the client, and should provide access opportunities at an appropriate time as soon as possible." Access to case files is the basic link for defense lawyers to handle criminal defense cases. If defense lawyers can't read the papers comprehensively, they can't put forward materials and opinions to prove the innocence, lighter or mitigated criminal responsibility of criminal suspects and defendants.

Compared with the old and new criminal procedure law, before the implementation of the criminal procedure law, even if the time is very short, lawyers can read the papers comprehensively. However, after the implementation of the new criminal procedure law, the right of defense lawyers to read papers was improperly controlled. In this way, during the trial, the procuratorial organs often take evidence by surprise, and there will be "mines" at any time, which will put the defense lawyers in a passive position. This cannot but be said to be a retrogression in history.

Article 150 of the new criminal procedure law stipulates that the file materials provided by the public prosecution agency only include the indictment and "evidence list, witness list and copies or photos of the main evidence". It is also commonly known as copy accusation evidentialism. The public prosecution only submits copies of the main evidence, and some "secret weapons" are only presented during the trial. Defense lawyers can't read the papers, and the investigation evidence is strictly controlled, which makes it difficult for defense lawyers to take measures. What's more, some public prosecution agencies reverse their priorities and often refuse to provide important evidence as secondary evidence, which makes defense lawyers "make a fool of themselves" in court.

The legislative intention of the new Criminal Procedure Law is to carry out a major reform of China's criminal procedure system and bring it into line with international justice. However, the above-mentioned restrictions on the right of defense lawyers to read papers run counter to their original intention, which makes defense lawyers unable to effectively safeguard the legitimate rights and interests of defendants and invisibly weakens their defense enthusiasm.

4. Difficulties in investigation and evidence collection.

The right of investigation and evidence collection of defense lawyers is an effective guarantee for defense lawyers to fully exercise their defense functions. However, with the implementation of the Lawyers Law and the new Criminal Procedure Law, the right of defense lawyers to investigate and collect evidence has not been strengthened, but has been restricted and weakened to some extent, which is embodied in two aspects.

(1) did not give lawyers the right to investigate and collect evidence at the investigation stage.

According to Articles 96 and 37 of the Criminal Procedure Law, defense lawyers have the right to investigate and collect evidence only at the stage of examination and prosecution, but not at the stage of investigation. In this way, the defense lawyer can't grasp the case in time and accurately, waiting for the trial stage. When lawyers find that doubtful evidence needs to be investigated and verified, the provisions of the crime of obstruction of testimony make lawyers afraid.

⑵ The new law sets many restrictions on the right of defense lawyers to investigate and collect evidence.

Article 37 of the Criminal Procedure Law stipulates: "Lawyers may collect materials related to this case from witnesses or other relevant units and individuals with their consent". With the permission of the people's procuratorate or the people's court, and with the consent of the victim or his close relatives or witnesses provided by the victim, a lawyer may collect materials related to the case from them. The above provisions are all based on the premise that the respondent "agrees" to be a lawyer to investigate and collect evidence, and the permission of the procuratorate or the court is needed when exercising the right of investigation on a specific object. This provision not only does not give lawyers the right of compulsory investigation, but also limits the lawyer's right of investigation.

In addition to the above-mentioned problems, there are still many rights obstacles in judicial practice, such as the difficulty for defense lawyers to apply for witnesses to testify in court and the difficulty for lawyers to check evidence, which also has a certain impact on lawyers' full exercise of defense rights.

(B) Analysis of the current situation of personal rights protection of defense lawyers

In China, the social functions and personal social status of defense lawyers are obviously different from those of countries ruled by law. Due to the low status of defense lawyers and the strong opposition of defense lawyers' business, it is not uncommon for defense lawyers' personal rights and personality rights to be illegally violated.

At present, although the Lawyers Law and the Criminal Procedure Law stipulate some rights of lawyers, criminal defense has not only made little progress, but even regressed. The main reason is that lawyers engaged in defense activities are very risky in their practice and it is difficult to speak out. Among them, defense lawyers themselves are also facing personal risks in their practice.

In recent years, vicious incidents such as attacking and persecuting defense lawyers, interfering with and hindering defense lawyers from performing their duties according to law, publicly expelling defense lawyers from court, illegally kidnapping and detaining defense lawyers, insulting and framing defense lawyers, slandering defense lawyers, searching and detaining defense lawyers' offices and articles, and even looting and beating defense lawyers have occurred from time to time in China. What is more serious is that after these incidents, they are often not handled fairly and timely, and it is difficult for defense lawyers to defend their rights.

Article 306 of the new criminal law stipulates the crime of lawyers destroying evidence, forging evidence and obstructing testimony, which exists in the history of foreign legislation. But in this article, it is a great threat and hidden danger for defense lawyers to "lure" witnesses to change their testimony. It is understandable that the defense lawyer thinks that the testimony is in doubt or wrong and asks the witness to re-verify, hoping that the witness can eliminate his psychological worries, correct his mistakes and state the facts realistically, so as to facilitate the fair handling of the case. However, the consequences of this kind of work are likely to be identified by the investigation organ as "luring witnesses to change their testimony, putting lawyers in prison for no reason and being convicted and punished."

Article 38 of the Criminal Procedure Law has a separate article for defense lawyers: lawyers help criminal suspects and defendants conceal, destroy or forge evidence, or collude, threaten or induce witnesses to change their testimony, commit perjury or engage in other acts that hinder judicial procedures. "investigate legal responsibility according to law." As soon as this mouth was opened, all kinds of investigations swarmed in. Incredibly, it is not just defense lawyers who engage in illegal evidence collection activities. The investigation organ has greater power and more opportunities to illegally obtain evidence than the defense lawyer, which is more harmful to society. The investigation organ only handles illegal evidence collection by itself, and it is impossible for defense lawyers to investigate and deal with it. However, the defense lawyer's illegal evidence collection was investigated by the other investigation agency. In criminal proceedings, defense lawyers defend criminal suspects and defendants, and they are in a competitive relationship with the investigation organs, even tit for tat. In this way, it is logical for investigation organs and procuratorial organs to use their power to engage in professional retaliation, which is extremely difficult to avoid. The defense lawyer suffered a great loss in criminal proceedings.

As for the personality of defense lawyers, they are not respected, despised and insulted by public security and judicial personnel. It is no exaggeration to say that, to a certain extent, it is nothing new for China defense lawyers to be bossed around like inferior people in the process of handling cases.

To sum up, the exercise and protection of the rights of defense lawyers in criminal proceedings in China is worrying. Both the protection of defense lawyers' own rights and the protection of litigation rights are incompatible with defense lawyers' performance of defense duties according to law, which seriously weakens the role of defense lawyers and hinders the improvement and development of the lawyer system. Therefore, in order to effectively improve the social status of defense lawyers, strengthen their role and speed up the process of building the rule of law, we should fully give them the right to protect defense lawyers.

Third, improve the protection of the rights of defense lawyers.

It is urgent to improve the protection mechanism of defense lawyers' rights in China, because improper rights restrictions not only damage the legitimate rights and interests of defense lawyers, but also lead to the failure to effectively protect the legitimate rights of criminal suspects and defendants, which leads to people's doubts about judicial justice. In China, according to the process of rule of law, it will take some time to improve the protection of criminal defense lawyers' rights. Therefore, the author believes that, in combination with China's current actual situation, improving China's defense lawyers' rights protection mechanism should include the following contents:

(A) the improvement of defense lawyers' litigation rights protection.

1, defining the identity of the defense lawyer.

As the author has discussed in the last article, defense lawyers have no effect because of various obstacles or obstacles set up by investigation organs. Based on this, the author proposes to cancel the first paragraph of Article 96 of the Criminal Procedure Law and amend Article 33 of the Law to read: "The criminal suspect has the right to entrust a defender from the date when the investigation organ of the public prosecution case files a case or takes compulsory measures against the criminal suspect ...".

2. Guarantee of the right to meet and communicate.

(1) Set the obligation of public security judicial personnel to inform criminal suspects and defendants. In legislation, it is emphasized that from the moment the criminal suspect is taken compulsory measures, the public security and judicial personnel have the right to inform the criminal suspect that he has the right to get the help of a lawyer.

(2) Ensure the time and conditions of the meeting.

China's legislation should also refer to international documents and foreign advanced practices, and it is not allowed to set a meeting time for defense lawyers. The author believes that there should be no limit to the number of meetings of defense lawyers, and the time of each meeting should not be too short. At the same time, measures should be taken to cancel the on-site supervision right of public security judicial personnel.

3. Establishment and guarantee of interrogation right.

The most direct function of defense lawyer's right to be present at interrogation is to stop the illegal and infringing acts of investigators in time. It is also the basic requirement of modern civilization to put investigation under the supervision of defense system. In China's criminal proceedings, there are a large number of illegal acts of extorting confessions by torture that infringe on the rights of criminal suspects. Therefore, from the perspective of protecting the legitimate rights and interests of criminal suspects and the litigation rights of defense lawyers, it is urgent to establish the right of defense lawyers to be present during interrogation.

4. Guarantee of the right of marking papers and the right of investigation and evidence collection.

(1) In terms of investigation and evidence collection, defense lawyers should be given the right to ask the court for permission to investigate. Article 3 1 of the Lawyers Law and Article 37 of the Criminal Procedure Law stipulate lawyers' right to investigate and collect evidence, but compared with Article 7 of the previous Provisional Regulations on Lawyers, this is a retrogression in China's legislation. Because the Lawyers Law and the Criminal Procedure Law clearly stipulate that lawyers' right to investigate and collect evidence is based on the consent and permission of judicial organs and witnesses. The author believes that this restrictive provision in legislation must be revised or abolished. Legislation should give defense lawyers the right to ask the court for authorization to investigate according to the needs of actual cases.

(2) When marking trees, evidence discovery system should be established. Compared with the old criminal procedure law, the new criminal procedure law advances the marking time to the stage of examination and prosecution, but the actual situation needs to be improved in many places. The author believes that the prosecution's evidence should be made public, including two aspects: first, the obligation to provide information in advance, that is, the prosecutor should disclose to the defense all the evidence that he will use as the basis for the accusation in the court trial; The second is the obligation to inform, that is, the prosecutor has the obligation to make the defense obtain any relevant materials that he does not intend to use during the trial.

In addition to the above contents, the author believes that in order to enable defense lawyers to better and fully exercise their defense functions, it is necessary to improve legislation in the aspects of lawyers' application for bail pending trial and application for witnesses to testify in court.

(B) the improvement of personal rights protection of defense lawyers

1, granting criminal defense immunity to defense lawyers.

Immunity from criminal defense refers to the right of defense lawyers not to be investigated by law when they exercise their defense functions according to law. In criminal proceedings, statements made by defense lawyers, as long as they are made by defense lawyers in response to cases, should not be investigated by law, no matter which judicial organ, whether inside or outside the trial, whether written or oral. Therefore, it is necessary to establish criminal defense immunity for defense lawyers to resist professional risks and perform defense duties.

2. The right to refuse to testify.

The right to refuse to testify means that the defense lawyer has the right to refuse to provide the public security and judicial organs with the facts of the case that are not conducive to the client. In order to perform their duties better, defense lawyers must know the facts of the whole factory in detail. Based on the trust in lawyers, the parties often tell the defense lawyers some secrets involved in the case. Although China's current Lawyers Law stipulates that lawyers have the responsibility to keep secrets, it does not explicitly give lawyers the right to refuse to testify. Establishing the right of defense lawyer is not only conducive to reducing the risk of lawyers' practice, but also conducive to improving the stability and guarantee function of lawyers' profession and defense system.

3. Refusal to detain and restriction of search right.

Seizure and search are common means of investigation institutions. Due to the confidentiality requirements of lawyers' profession, the laws of many countries stipulate that lawyers are not allowed to search their offices and houses for participating in the criminal defense of cases unless there is evidence to prove that they are suspected of seriously concealing the defendant's criminal evidence. If necessary, it must be carried out in accordance with special procedures, and lawyers are given the right to refuse to seize documentary evidence and physical evidence. Our law does not give lawyers this right. This not only violates the international practice, but also deviates from the inherent requirements of lawyers' professional confidentiality.

Concluding remarks

The protection mechanism of defense lawyers' rights in criminal proceedings is restricted by many factors, such as the value orientation of criminal proceedings, criminal judicial policies, judicial resources and the quality of judicial personnel, and presents a dynamic operation process. Whether the mechanism for safeguarding the rights of defense lawyers is perfect or not is directly related to one of the basic purposes of criminal proceedings-safeguarding human rights. "The fundamental significance of criminal proceedings aimed at protecting human rights lies in that in the face of a powerful government that makes criminal charges in the name of protecting public interests, any accused individual has sufficient conditions to resist illegal persecution and arbitrary prosecution, so that the government can take prosecution actions that may harm individual rights and interests within the scope authorized by the Constitution and laws. The government and individuals are equal before the democratic constitution and laws that embody the people's will, and individuals have the right to safeguard their legitimate rights. This is the minimum requirement for safeguarding human rights in criminal proceedings, and it is also the logical starting point for safeguarding the rights of criminal suspects and defendants. The right protection of defense lawyers should also be zero. It can be said that the pursuit of the unity of punishing crimes and protecting human rights is the common goal of criminal proceedings in modern countries. Under the guidance of this litigation purpose, so far all countries have expanded the right of defense lawyers to participate in criminal proceedings, and the breadth and depth of defense lawyers' participation in criminal proceedings have been generally strengthened, and the protection of human rights has been paid double attention. Undoubtedly, the protection mechanism of defense lawyers' rights in criminal proceedings is not only restricted by a country's political, economic and cultural conditions, but also influenced by its historical traditions, especially the mainstream values of society, both in theory and in practice. However, it is the direction that the world should continue to work hard to effectively protect the personal rights and other rights of defense lawyers in criminal proceedings and further expand the space and opportunities for defense lawyers to participate in criminal proceedings.

China is a socialist country under the people's democratic dictatorship. Litigation democracy, rationality and civilization corresponding to socialist democratic politics are her inherent attributes. In terms of the defense system and the protection of the rights of defense lawyers, although there may be some unsatisfactory places at present or in the future, the author is full of confidence in its bright future.

refer to

1, Long Zongzhi's Relative Rationalism, China University of Political Science and Law Press, 1999.

2. On the Structure of Criminal Procedure, Li Xinjian (China University of Political Science and Law Press, 1997).

3. Amendment to the Criminal Procedure Law (I), edited by Xu Jingcun, Law Press, 1999.