"This is the same root, fratricidal" -- Li Zhuang court hearing the phrase

 The vast majority of judges under normality is legal literacy and occupation moral, devote themselves to learning the good article.

Chen Yuanping

 "Criminal law" stipulates that the 306th "in the criminal procedure, the defenders and agents ad litem, destruction of evidence, evidence, help the parties destroy evidence, forgery, threat, seducing witness to change or make false testimony, is less than three years imprisonment or criminal detention; if the circumstances are serious, department for more than three years seven years in prison." According to the Supreme People's court "about the provisions of the" execution "of the people's Republic of China Criminal Law > determine charges, the charges for the defenders and agents ad litem, destruction of evidence, false evidence, prejudice to testify the crime. Provisions in the penal law of 1979 and the single criminal law no obstruction of evidence on the defenders and agents ad litem, aspects of the behaviour of an independent conviction and punishment of. Through the investigation of the crime, the legislative process can be seen, when the criminal law amended in 1997, added the crime mainly in the following two reasons: one is for the judicial practice, some lawyers and other defenders and agents ad litem, abuse of power, against the occupation, occupation moral obligation, providing court interference trial use unscrupulous divisive tactics making false evidence, seriously hinders the normal criminal procedure, violation of civil life, freedom, property and other major interests, or even lead to the occurrence of wrong, false, wrong. In order to ensure the normal and healthy development of the lawyer system, promote the rule of law in China, should be duty and legal requirements for lawyers, other agents ad litem, criminal regulations obstructing normal criminal litigation behavior. The two is with the "Criminal Procedure Law" article thirty-eighth, "lawyer law" the provisions of article thirty-fifth are connected, so that the violation of procedural law prohibiting norms shall be investigated for criminal responsibility behavior, and find evidence in the substantive law. Because this crime to the defenders and agents ad litem, (mainly lawyers) as a special subject, therefore, in addition to the law, lawyers and some experts and scholars put forward different views, that there is no need to add this new crime. In this paper, quasi judicial confirmation and the abolition of the crime of value.
    One, the defenders and agents ad litem, destruction of evidence, false evidence, prejudice to testify crime and penalty application
   According to the "criminal law" in article 306th, constitute the crime must satisfy the following requirements:
   (a) the subject of the crime
   This crime can only be formed by criminal defender, agent ad litem, including lawyers and other defenders, with no lawyer agent, so this crime belongs to the special subject of crime, namely crime of identity.
   (two) the subjective aspect of the crime
   In the subjective aspect of this crime is intent, negligence can not set up this crime. Because, in the second paragraph 306th of the criminal law makes clear a regulation, the defender, agent ad litem, produce, provide reference of false evidence, not forged intentionally, not belong to forge evidence. However, this intention is deliberately direct, or indirect intention? The author thinks, this crime can only be constituted by direct intention. Because, from the understanding of the factors, the behavior of the destruction of evidence, evidence or prejudice to testify the nature of the act and its possible obstruction of criminal proceedings is the consequence of knowing in the subjective; from the will factor, the actor has clear goals, and actively pursue the obstruction of criminal procedure successful results, is a kind of typical direct intentional crime. The crime of indirect intent can be out of view in the subjective aspect, the theory does not meet the classification and characteristics of the intentional crime, in practice will also lead to enlarge the scope of criminal responsibility.
   (three) the object of the crime
   Since the crime defined only in the criminal process, the defender, agent ad litem in criminal procedure, the specific identity of its own, to reduce the destruction of evidence, false evidence, prejudice to testify to the criminal behavior or to escape the legal sanction, this is not only a serious interference to the criminal litigation activities, but also on the criminal defense system the damage. Therefore, the object of the crime is complex object, namely the criminal activity judicial organ normal smoothly and criminal defense system, in which, the criminal activity judicial organ normal smoothly is the main object, and the defense system is the secondary object.
   (four) the objective aspect of the crime
   Behavior of this crime is the behavior of people, in criminal proceedings, destroy or falsify evidence,, help the parties destroy, forgery, threat, seducing witness to change or to acts of perjury. The time of this crime -- criminal lawsuit, marked the scope of the constitutive behavior, namely non criminal lawsuit, it does not constitute a crime.
   Application of the penalty, "basic law" 306th stipulation of the legal punishment of this crime is "less than 3 years imprisonment or criminal detention;" aggravated constitution of crime legal punishment for "more than 3 years to 7 years in prison". Therefore, the application of this crime punishment, should first determine the specific application of the sentencing range. The so-called serious, generally refers to the means of crime is extremely bad, serious prejudice to the normal criminal procedure; the crime of causing people to escape criminal prosecution; the innocent people from criminal; other serious consequences etc.. On the legal punishment in less than 3 years imprisonment or criminal detention, the case really belongs to the crime are minor and do not require punishment, such as the discontinuation of crime, free; for a mitigated punishment conditions or conditions of probation, probation can be given a mitigated punishment or.
   Two boundaries, the defenders and agents ad litem, destruction of evidence, false evidence, prejudice to testify the crime and non crime, this crime and other crime
   (a) limits the defenders and agents ad litem, destruction of evidence, false evidence, prejudice to testify the crime and non crime
   This crime is intentional crime, negligence does not constitute a crime. But the distinction between this crime intention and negligence of the key lies in understanding human behavior, factor and will factor, therefore, in judicial practice, we must first find out whether the actor has a clear understanding of the nature of the destroy or falsify evidence, or induce others to commit perjury behavior; second, should be to destroy or falsify evidence, or to induce others to commit perjury is in violation of the act of the will of the people. If the behavioral person due to witness deceit, or because the investigation is not in-depth, some can not be used as evidence of the fact or articles mistakenly think that is real evidence to the court to provide, produce, reference, or due to reasons other than the will of the people caused by the behavior of evidence material loss, the person is not forged intentionally or destruction of evidence evidence of this crime, so it cannot be investigated for criminal responsibility in human behavior.
   (two) the difference between this crime and the crime of perjury
   The crime of perjury crime in form and features have many similarities, main show is in: two sin is pure status crime, subject of crime is special subject; in the subjective aspect, the two crime is intentional, negligence can not constitute the crime of two; in the objective aspect of crime, two were in the criminal procedure, destruction of evidence system, obstructing the normal criminal litigation smoothly behavior; implementation of the crime, the normal criminal activity judicial organs caused by the infringement.
   The difference between the two is the direct object of crime: 1, crime is different, the direct object of this crime is a complex object, as mentioned before; simple object perjury crime, only to the normal criminal activity judicial organs. 2, the object of crime, the object of the crime is the evidence, namely "the law of criminal procedure" to be able to prove the seven facts of the facts of the case; the object of crime of perjury crime is limited to specific evidence, the witness testimony, appraisal conclusion and relevant and criminal record material, translation etc.. 3, the objective aspect of crime, the crime objective aspect to destroy or forge evidence, to help the parties destroy or forge evidence, threat, seducing witness to change or to acts of perjury. The objective aspect of crime in criminal proceedings, witnesses, appraisers, record, translators have important relationship for the case of the plot, so deliberately false, identification, recording, translation, meant to harm others or conceal evidence act of perjury, and does not exist in the threat, seducing witness to change or give credit behavior. 4, the subject of crime is different, although the two subject of crime is a special subject, however, the subject of this crime can only be the defenders and agents ad litem, and perjury is the only witness, identification, recording and translation. 5, the criminal purpose is different, the behavior of people in the subjective out for parties, against the criminal purpose; perjury behavior in subjective on both may be in order to protect the parties, may also be in order to frame the parties.
   For the defenders and agents ad litem, abetting, helping the witness perjured, because people only the implementation of a behavior, violated the two charges, which belongs to the overlap of articles of law, should be in accordance with the principles of special law is superior to common law, with the conviction and sentencing.
   (three) the crime and obstruction of witnessing, help limit destruction, crime of fabricating evidence in accordance with the "criminal law" the 307th paragraph first, the prejudice to testify the crime refers to the violence, threat, suborn witnesses and other methods to prevent or inciting others to commit perjury behavior; in accordance with article second, the so-called help destroy or falsify evidence, crime is to help the parties destroy or forge evidence, if the circumstances are serious behavior. The crime with the crime of the difference is: 1, the subject, the subject of this crime is a defender, agent ad litem; two after both general subject of crime, the criminal responsibility age, have the ability of criminal responsibility may constitute the crime of the two. 2, the process is different, can only occur in the process of criminal proceedings; the latter two can occur in the criminal litigation, civil litigation, administrative litigation process, which is not limited to criminal proceedings. 3, the objective behavior is different, the act of this crime as mentioned before; behavior of both the use of violence, threats, suborn witnesses and other methods to prevent or inciting others to commit perjury, or help the parties to forge, destruction of evidence, if the circumstances are serious behavior.
   If the defender, agent ad litem in criminal proceedings, to help the parties destroy or falsify evidence, or threatening, luring witnesses perjured, because people only the implementation of a behavior, violated the two charges, which belongs to the overlap of articles of law, in accordance with the special law is superior to common law concurrence principle, the two cases shall be punished according to the crime.
   Three, the defenders and agents ad litem, destruction of evidence, false evidence, prejudice witness to the criminal legislation originally waste on the value of the deposit, the legislative spirit in general, is to prevent perjury, seek truth from facts, and ensure a fair trial. However, from the special subject of legislative idea, the establishment of this crime, provision of fiction, judicial practice and effects of other aspects, its shortcomings are obvious, the negative effects are also increasingly apparent.
    According to the principle of criminal legislation, criminal provisions relating to the special subject must meet two conditions: one is the implementation of the special subject of the behavior of a serious harm to society, need to criminal law prohibited; two is only the special subject to the implementation of this act, other people can not implement the behavior. If not only certain people (based on identity, occupation etc.) but all may implement this behavior, there is no need for a class criminal provisions, and shall apply the ordinary criminal provisions. Control "provisions of the criminal law" in article 306th, the first condition is satisfied, but the second condition is not, because in the criminal procedure, the defender, agent ad litem may violate the evidence of the crime, other people can also be implemented. Therefore, the method of setting, contrary to principles of criminal legislation. In view of this, some scholars have suggested, this crime to the defenders and agents ad litem, (mainly lawyers) as a special subject, blurring the boundaries between the lawyer responsible and illegal, contributed to the negation and restrictions on lawyers do agents, and occupation discrimination of lawyers. [1] from the foreign related provisions in law of criminal liability, are all common specification, namely the unspecific majority and make, lawyers may offend, other people may also be breaking, such as contempt of court, obstruction of evidence, occupation etc.. The lawyer is not a special subject, the particularity of lawyers is not its identity, but in its behavior, which is associated with the job activities.
    The provisions of article 306th and article 307th of criminal law "form", the provisions of article two of the criminal behavior in the objective aspect is basically the same. Two crime in the objective aspects can act as the threat, inducement and other means to prevent the witness testimony or instigates a witness to give false testimony, but, in the defenders and agents ad litem, destruction of evidence, false evidence, prejudice to testify the crime, behavior also can directly implement destroying evidence, false evidence or help the parties destroy evidence, evidence behavior. The subject of crime in two different, basically belongs to the content repetition, overlap of defects. At the same time, the provisions of the first paragraph of article 306th and 307th of the statutory punishment are exactly the same, but for the existence of overlap of articles of law of two crimes, the criminal legislation in common law has stipulated the crime, but also separate provision a special law, set up a special crime, because the specified this special law the crime had not the provisions of the common law crime legal punishment is covered, the need to increase the punishment, that is to say, the special law prescribed crime legal punishment should focus on common law prescribed in the legal punishment of the crime, otherwise, also lost the existence significance of overlap of articles of law.
    Consideration from the empirical point of view, the article on the defenders and agents ad litem, (mainly lawyers) criminal responsibility in accordance with law, has been increasingly exposed the defects. Because of many involved in the law of the objective aspect of crime behavior, not to itemize way of expression, and concentrated in a short article, cause dispute often caused the trial practice, and the law on Lawyers violations and illegal behavior defined fuzzy as well as to "lure", "threat" standards are not unified, resulting in case of "long", "extended custody" phenomena often occur. At the same time, in the judicial practice, this article also easily by some law enforcement officers as revenge according to occupation. According to the National Lawyers Association in 2000 May to 23 for such a case statistics, among the 11 suspected cases of lawyer acquitted or withdrawing, 6 a guilty verdict, 1 exempted from criminal punishment, 5 have not yet closed, crime rate reached more than 50%. [1] this set of data shows, the provisions there are serious problems in judicial practice.
    In addition, the implementation of the law, to a certain extent, dampened the enthusiasm and confidence of lawyer in criminal cases, but also directly affect the implementation of the "criminal procedure law". "The provisions of article ninety-sixth of criminal procedure law in advance of the criminal procedure law", it is a great progress of the criminal procedure law, however the "criminal law" has stipulated in article 306th, but the provisions of article ninety-sixth of the lawyers from practicing risk trap, the lawyer was related to probability organs error held greatly increases the error violates the criminal law and. [2] caused a sharp drop in the number of criminal defense around the country, and even individual local adverse situation of criminal defense lawyers refused. Therefore, it is argued, the law directly contrary to the goal of justice of criminal proceedings, violated the basic rules of lawyers, not conducive to the construction of democracy and the rule of law, is not conducive to the development of lawyer profession.
    To sum up, the author believes that, because of "criminal law" article 306th there are obvious legislation flaw, produced more and more negative effects in practice, its value should be negative. In the "criminal law" before the unmodified, on the application of the law should be strictly in accordance with the constitution of crime standard accurately grasp, avoid the lawyers work errors or mistakes, or violations identified as a crime. In the "criminal law" revised in the future, to recommend legislation to enrich the "criminal law" in the first paragraph of the 307th provisions of prejudice to the crime, so as to cancel the provisions of article 306th.
    *Chen Yuanping, Department of the Chongqing first intermediate people's court punishment a court judge.Position: Criminal Tribunal
   [1]Wang Li: a comparative study of criminal responsibility "" Lawyer Law Press, 2002 May edition, page ninety-fifth.
   [1]See the "Statistics" ACLA rights case, 2000 May.
   [2]Chen Weidong: "survey report" issues in the implementation of the criminal procedure law, China Fangzheng press, 2001 May edition, page 239th.

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