Article 306th of the criminal law decide on what path to follow?

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Liu Guiming ":

   As far as I know, as long as it is Chinese lawyers or say as long as is a criminal defense lawyer, who does not know the 306 article of the criminal law, who are not clear article 306 of the criminal law to China lawyer of pain and grief. In the just concluded "function and the function of criminal defense" as the theme of "democracy and legal tour forum" the first station of Sichuan station, from all over the country's criminal defense lawyer has once again talking about the "Article 306 of the criminal law".

   Speaking of the "criminal law" the 306 ", China lawyer is really too many words to say, too hard, too much blame lawsuit to hold. So, the lawyer like many peers once again reached a consensus: the "Article 306 of the criminal law is not to abolish death does not give up"! Even if not abolished should also be reformed, even ordinary subject after transformation, including lawyers, also be most willing to. Although some people said, even the abolition of Article 306 of the criminal law may not be able to solve the problem of criminal defense lawyers practicing environment, however, we advocate to abolish it.

     So, I think the five year ago at this time, one of my old, that is "the article 306 of the criminal law brought up".

    Coincidentally, the rule of law over the weekend recently invited Professor Zhao Bingzhi and Tian Wenchang, Han Jiayi of the two major suit law "Article 306 of the criminal law" were demonstrated again.

 

 

 

"The 306th bands"

A debate about the article 306th of the criminal law of the fate of the mock trial

 

                                            Wen, Liu Guiming

Such things some people may not have heard of, some people may have heard of, some people may have heard but not seen.

The same case, the same fact, the same evidence, the same place, but with different procedures, different trial mode.

Such a thing from May 20, 2006 to 21 at the Tsinghua University School of law, and building it as clear as noonday happened.

The Chinese Academy of Social Sciences Institute and the Beijing Oriental public welfare legal aid lawyer office jointly organized by the association, moot court, Tsinghua University School of law, the National Lawyers Association punishment committee Co, in fact is one of the China's criminal law article 306th content of the international academic seminar. Simulates the court with a lawyer suspected of perjury case, respectively, in Holland, Hongkong, Chinese USA model of law and procedure for trial, the trial results vary.

　　

Simulates the court out of "perjury lawyer" case

Simulates the court first to provide participants a entitled "Wang Wencai perjury", this is seemingly simple but common case:

    In 2005 September, the suspect Wu De on suspicion of rape victim Liu Li, A Municipal Public Security Bureau of criminal detention. In October the same year, A City People's Procuratorate approved the arrest and prosecution of Wu De to the A, the people's court according to law. In the trial process, Wu De overthrew the confession made of them in the public security organs and the procuratorates in court, a copy of the Wu's lawyer Wang Wencai submitted to the court of Liu Li writing "reflected" and Wang Wencai did to Liu Li's record. In the "reflected" and the record, Liu Lijun overturned the guilty earlier, requesting withdrawal. After the adjournment, A City People's Procuratorate investigation of the court case. Via checking, a week before the hearing, Wu De's father Wu Ziliang to 50000 yuan for the conditions, request the withdrawal of Liu Li Wu De's allegations. Liu Li accepted the investigation Wang Wencai's lawyer, and sign on the record of inquiry request the withdrawal of the suit. The procuratorial organs of persuasion and education, Wu Ziliang and Liu Li said, their behavior is Wang Wencai's guidance and induction, Liu Li also overthrew "reflected" and the content in the lawyer in the transcripts, once again accused Wu De of rape her. A people's court Wu De rape was guilty verdict. In addition, the procuratorate seized Wang Wencai and Wu Ziliang signed the "agency agreement" in the "such as Wu De was acquitted but additional fees" and other contents of the documentary evidence. A City People's Procuratorate think, Wang Wencai in order to seek more economic returns, induce others to commit perjury, obstruction of justice, in violation of relevant laws.

The requirements of various patterns of various courts, pay full attention to the following problems:

Properties of 1, Wang Wencai did not agree to the victim by procuratorial organs of investigation behavior;

   2, the lawyer to Wu Ziliang predicts the consequences of the case, legal consulting is normal, or a disguised form of seduction or carrot?

   3, how to understand the law "lure" or "carrot"? How to distinguish between "lure" or "carrot" relationship with the lawyer occupation morals, lawyer defense skills?

   4, the agreement contains "innocence can increase the fees" content, relates to the lawyer in criminal cases the value trend: interest driven? To better protect the rights of criminal suspects? The criminal or illegal motive?

　　

Four modes of interpretation of "perjury lawyer fate"

According to the requirement, members of Chinese simulation hearing held by Chinese senior legal person, for China Law Moot Court; Holland as experienced by the Holland law, applicable laws of Holland; Hongkong moot court as experienced by the Hongkong law, applicable Hongkong law; USA moot court held by America senior legal person, American law applicable. At the same time, the simulation hearing or moot court case reviews were set up respectively by the relevant people, well-known legal experts trial comment.

It is the four moot court in deciding the fate of Wang Wencai lawyer, say experts and scholars in the trial of 306th. So, the ear heard "306th band" session announcement. Of course, the 306th cannot be trial by trial, only through the 306th behind the occupation and the imbalance of revenge.

The trial is a simulation, but the discussion is a kind of state. The four day, four models, four kinds of style, four kinds of culture, is the interpretation of the different law culture of three countries, two big legal system and legal system, discusses the lawyer occupation morality, law and article 306th of the criminal law to protect the rights of the abolition of such hot topics.

   There was such a sentence that lawyers for having heard it many times as saying: "if you want to make the law, don't go when the lawyer; if you want to be a lawyer, you don't to do criminal cases; if you want to do a criminal case, they do not get the testimony of witnesses; if all this do not, then you on their own to rehab!" This sentence out of the dilemma and difficulties of China's lawyers in the criminal defense, also shows that the real obstacle to China's criminal law and judicial environment.
   The arch-criminal may be article 306th of the criminal law. 
   Our country criminal law 306th stipulation: "in criminal proceedings, the defenders and agents ad litem, destroy or forge evidence, to help the parties destroy or forge evidence, threat, seducing witness to change or make false testimony, is less than three years imprisonment or criminal detention; if the circumstances are serious, three to seven years be sentenced to. The defenders and agents ad litem, provide, produce, citing witnesses testimony or other evidence inconsistent with the facts, not forged intentionally, not belong to forge evidence.

Is this the only 100 words, in 1997 the implementation of article 306th of the criminal law, the "hanging in the lawyer's head a momentarily possibly falls into the sword", many lawyers "psychological shadow on punishment pale", became many lawyers handle excuse Voices of discontent...... So, criminal defense attorney is less and less, criminal defense attorney ineffective.

   Therefore, NPC deputies put forward a motion, demanded the repeal of article 306th of the criminal law; put forward the views of members of the CPPCC National Committee, proposed changes to article 306th of the criminal law; experts opinion, theory analysis; lawyers issued a call, said practice confusion.

   Decision thinking way, ideas represent practice.

Simulates the court despite the show four models, four kinds of philosophy, but not four kinds of results. Despite the four court failed to final ruling, but with the trial, participants come very naturally to discover: in addition to China tribunal, other family harmonious and relaxed atmosphere, procedure justice, so basically unlikely decision Wang Wencai lawyers constitute perjury.

Because of this, the most contentious court, China caused the most.

   So, the lawyer Wang Wencai whether the violation of the criminal law 306th stipulation "lure", divided, not a reaction.

   Interestingly, in the Chinese court, as the same trench comrades money Lieyang lawyer and lawyer Xu Lanting, the former Beijing municipal respectively led the criminal procedure law and criminal law professional committee of professional committee, today are playing different roles of both sides, the Wang Wencai is violated Article 306th of the criminal law and the duel.
   After China tribunal court closed, some of the audience think, Wang Wencai lawyer told the suspect Wu De's father, Wu Ziliang, how to make the victim himself, is Wu Ziliang himself, this is a very obvious "lure" components, it is to let Wu Ziliang go to the Liu Li work. Of course, more audience to believe that the parties to the case, the lawyer, the lawyer will advise the guilt or innocence of several possibilities. Among them, the lawyer said Wang Wencai only the victim himself to let Wu De absolution argument, and Wu Ziliang's own money to no necessary link between the victim. As Wang Wencai lawyers said: "I did not tell him what to do, what did he do not tell me." It is difficult to define Wang Wencai's behavior whether to belong to "lure". Therefore, the position of defense role of lawyers for Wang Wencai's lawyer Han Jiayi "and" a "silent": "if I told Wu Ziliang the bank money many, is lured him to rob a bank?"

　　

Experts and lawyers on 306 of the abolition

The National Lawyers Association punishment committee director Tian Wenchang lawyers think, article 306th of the criminal law is indeed worthy of reflection.

   He said: "article 307th of the criminal law has prescribed perjury, and 306 separate regulations on lawyers and perjury, which may lead to occupation." At present, most of the lawyers have taken negative defense way, not actively investigating. So, 306 essentially ultimately not conducive to the law to protect the legitimate rights of the defendant, not conducive to the judicial justice.

   ACLA criminal Authority Deputy Director Li Guifang believes that the 306th should be cancelled. He said, the 306th leading lawyers to perform their duties and "lure" it is difficult to distinguish, in practice it is difficult to grasp the lawyer. But in reality, many witnesses in the lawyer forensics, for various reasons to change the original testimony. However, when the law enforcement agencies to re survey of the witness, the witness "testimony is often a new lawyer told me to say," the lawyer was arrested, but the real perjured witnesses had guilt home.

This, Renmin University of China law school professor Chen Weidong puncture a fallacy with one remark mystery. He thinks, lawyers and any citizen, help the parties to forge evidence, also should assume responsibility. But how to affirm the "lure", should be more clearly in legislation. At present, the lawyer prosecutors and judges find evidence allowed victims without, in order to ensure that the prosecution evidence is stable, the negative influence of this approach is the inequality. So, the way to solve the problem is not to let the lawyers to witness, but the request for the witness to appear in court, by both sides cross examination. The trouble is, the witness in criminal cases almost never appear, are written testimony. The result is holding a testimony, the defense will want to engage in a contrary testimony. So, the defense exists against dangerous article 306th.

   In view of this, the National Lawyers Association punishment committee recently held a symposium on "criminal law," article 306th of the abolition. They suggest, the abolition of "Criminal Procedure Law" thirty-eighth and "criminal law" article 306th, the relevant content into a "criminal law" article 307th, so as to maximize the protection of lawyers in the performance of the defense duty from unlawful interference and persecution in the process.
   Different atmosphere, different mode, different people, different styles, different results, different ideas, perhaps it is different what one sees and hears all participants. While the participants are thinking is common, all want to protect the lawyers' rights, fairness and justice are eager to legal procedures, hope to achieve unified thought of rule of law.
   Perhaps, this is the original intention and expectation of the organizers. 
   Wang Wencai's fate is virtual, but 306th of destiny is the reality.

   Participants eventually want 306th no longer become a topic, no longer become lawyers painful memories, no longer so harsh to treat every criminal defense lawyer.

So, the lawyer to legal privilege, countries, fortunately, people have the honor.

 

 

News links: the main legal articles involved in the case

1, "lawyer law" forty-fifth article third paragraph: to provide false evidence, concealing important facts or threatening, luring others to provide false evidence, concealing important facts.
2, "the judicial administrative organs of Administrative Hearing Procedure Provisions" of the relevant provisions of.
3, "criminal law" article 306th: in the criminal procedure, the defenders and agents ad litem, destroy or forge evidence, to help the parties destroy or forge evidence, threat, seducing witness to change or make false testimony, is less than three years imprisonment or criminal detention; if the circumstances are serious, three to seven years in prison. The defenders and agents ad litem, provide, produce, citing witnesses testimony or other evidence inconsistent with the facts, not forged intentionally, not belong to forge evidence.
4, "Criminal Procedure Law" thirty-eighth article: defense lawyers and other defenders, may help the criminal suspects, defendants to conceal, destroy or falsify evidence, or collusion, threatening, luring witnesses to change their testimony or conduct other acts of interference of judicial litigation activities. In violation of the provisions of the preceding paragraph, shall be investigated for legal responsibility according to law.
5, "Criminal Procedure Law" article forty-sixth: all cases are to be sentenced to the weight of evidence, investigation and study, not credulous. Only the accused confessed, no other evidence, not the defendant is found guilty and sentenced to a criminal punishment; without the confession of the accused, the evidence is sufficient and reliable, can be found the defendant guilty and sentenced to a criminal punishment.
6, "Criminal Procedure Law" forty-seventh article; the testimony of witnesses in court by the public prosecutor, the victim and the defendant, counsel questioned both sides, questioning, listening to the testimony of witnesses and have been verified after, can serve as the basis for deciding. The court witness has intentionally given false testimony or conceal evidence, shall be dealt with according to law.

　　(Note: This article is starting to China "lawyer" magazine in 2006 ninth period, in the "Legal Daily" forward)


 

 

 

    Article 306th of the criminal law

             2011-07-05 23:50:00 source:Law weekend

                                     Reporter Chen Xiao Zhu Yuchen

 

   The latest progress of Guangxi Beihai 4 lawyers perjury, attorney Yang Zaixin has been Beihai police arrested, 3 other lawyers bail.

   In July 4th, Zhang Kai aid lawyers issued a sincere invitation in micro-blog, 3 lawyers appealed to bail out to speak out.

   3 witnesses, 4 lawyers, was forced to take measures for the same "perjury", captured, customs clearance, the start of the Guangxi an unprecedented 4 lawyers perjury to article 306th of the criminal law of the hanging in the lawyer's head "Damour Damocles", once again become the focus of attention.

   According to the survey of all China Lawyers Association, 1997 to 2007 10 years, mastered by article 306th of the criminal law by the prosecution lawyer as many as 140 people are still missing, but the investigation, the real figure is much higher, but was eventually convicted of only 32 (most of which are still in Shen Suzhong).

   In time these lawyers were arrested, both before trial, also has the trial process, including the trial court adjourned after being caught and arrested. What is the crime of perjury lawyer so impossible to guard against?

  "Rule of law over the weekend" to invite famous scholars, lawyers, are fully discussed in the 306th article of the criminal law itself and the outside of the problem, trying to find the key to open the future.

 

The value of legislation in the first paragraph 306th is negative


　　"Rule of law over the weekend": article 306th of the criminal law legislation, caused some confusion in the law enforcement level. Article 306th of the criminal law and the provisions of article 307th of the same charge, but the latter subject is not specific, but the former lawyer as a specific subject to the provisions of. Would you like to have a lawyer as a special subject to separate out the crime?

    Zhao Bingzhi (Dean of Beijing Normal University law school):The provisions of the present criminal law 306th provisions of the first paragraph of the defenders and agents ad litem, destruction of evidence, false evidence, prejudice witness to the criminal, the criminal law promulgated, and even in the current legislation are disputed.

   The current criminal code may not have a like this one, will be such a concentrated industry, consistently opposed, but was also mentioned that is contrary to the height equal application of criminal law principle that, I'm afraid is unexpected legislators.

   This is a phenomenon worthy of reflection from the two dimensions of criminal legislation and criminal policy.

   From this set, presumably, lawmakers will have two reasons: one is the special regulation of the law behavior. Two is the current criminal law in legislation is positioned in a unified criminal code of this scale, it requires that all of the single criminal law and accessory criminal law into one.

   But further analysis, the two possible legislative motives are also worthy of scrutiny.

   Analysis on the first reason, as some commentators said, law implementation of destruction of evidence, false evidence, prejudice to testify the behavior, the nature of behavior no matter and general subjects of this crime, the social harmfulness has no amount of different. This point is also affirmed the legislators, for 305th, 307th and 306th of the first paragraph of the provisions of the first paragraph of the penal model and weight are the same.

   Will the defenders and agents ad litem, as a special subject provides an independent crime, is actually the lawyer set up, because the vast majority of served as counsel in criminal proceedings, litigation agent role is a lawyer. There is no discrimination law meaning even if lawmakers in the amendment to the criminal code, but the objective law expression conveys information that is not to counsel in criminal proceedings in practice, that seems to feel lawyers are more likely to destroy or forge evidence, easier to testify. So, the lawyer should be more and sanctions assessment of severe criminal liability.

   You can see legislators could not to transfer this information, but it is indeed widespread misunderstanding. This misunderstanding is not only to the lawyer in criminal litigation practice activities bring great psychological pressure, is not conducive to the development of normal defense work, but in the eyes of the public, especially in the law enforcement, judicial personnel's occupation of lawyers reputation, social image will have a doubt.

   Article first of criminal law not only have 306th defects in legislative technology, the legislative value is defective. Feedback from practice of information, the social effect is not good. Specifically, the negative effect of the foreseen in the legislation has to a certain extent.

   According to statistics, the National Lawyers Association, 1997 to 2007 10 years, more than more than 140 lawyers in 306th by the prosecution, but only 32 were convicted, of which there are many in the complaint. This leads to the country criminal defense number dropped to a certain extent, some places even lawyers refused to bad situation in the criminal defense.

   Can say, the objective effect which caused not only reflected on the lawyer's unfavorable situation the activity itself, but also has a certain degree of negative impact on the construction of democracy and legal system.

   This is mainly manifested in the following three points: intensified prosecution, litigation status of the imbalance between two sides; encourage retaliation occupation of the judicial organ to the lawyer, deterioration of the normal relationship between parties; have a negative effect on the development of lawyer profession.

   Generally speaking, the value of criminal law legislation in the first paragraph 306th is negative, so it is necessary to at the appropriate time, be modified or deleted by the state legislature.

 

In fact, restrictions and deprived of the right to defense of the accused


　　Tian Wenchang (director of the professional committee of ACLA):If the understanding of the article 306th of the criminal law of the sequence of events, the problem is clear.

   Article 306th of the criminal law from the criminal law article thirty-eighth, the latter is added in the revised criminal procedure law of 1996. The method of background, is a lawyer handling criminal cases early in the investigation and prosecution stage, the public security, procuratorate to be on one's guard for two.

   The result of the game, in criminal procedure law increased thirty-eighth. When the criminal law was revised in 1997, a corresponding increase in article 306th of the criminal law. The two objective is to be restricted and restrictions on lawyers.

   Therefore, article 306th of the criminal law is discriminatory provisions.

   In practice, most of that is the case, once the investigation of lawyer witness testimony is changed, the investigation organ or the public prosecution immediately turned to find witnesses to verify.

   Then, a direct threat to the witness testimony must produce is the two one was a perjury, that you must bear the responsibility of perjury. But why do you lie, only two possibilities, either your own, or lawyer to.

   In this case, the vast majority of witnesses including the defendant, in order to protect themselves, can say is a lawyer to.

   In practice, most of the really tempted, intimidate the witness perjury, the party to make false confession is not a lawyer. If so, then why single lawyer listed? Because in some people's eyes, the lawyer is "bad" defense, is working with the parties.

   Secondly, article 306th of the criminal law has clear guiding role.

   Its practical consequences more severe in where? Not only is the lead lawyer for grasping, caught in the process of lawyers in the case, in fact is the destruction of the entire defense environment, not only disrupted caught defense activities, also let the other lawyer can't fully defense, the defense function all is weakened and offset.

   Another serious consequence is that the lawyer did not dare to investigation and evidence collection. Investigation and evidence collection is an important content of attorney. But over the years, the national defense lawyer investigation and evidence collection is a panic extremely, dare to investigating lawyers very little. In some places even explicitly, lawyers cannot investigation. This phenomenon is extremely serious prejudice to the defense function, is an important cause of miscarriage, is very terrible.

   Article 306th of the criminal law on the surface limits and violations of the lawyer's rights, seriously dampened the enthusiasm of lawyers, but these are minor. More importantly, it actually limits and deprived of the right to defense of the accused, the destruction of the entire criminal defense system, the final destruction of the judicial justice.

 

The balance pattern was completely destroyed


　　"Rule of law over the weekend": how do you view the law enforcement confusion caused by 306th, and is often used to suppress the negative effects brought by the lawyer.

    Han Jiayi (ACLA criminal professional committee secretary general):In fact, in article 306th of the criminal law under threat, the criminal defense lawyers were forced to abandon the evidence, to protect themselves; also makes the balance between prosecution and defense of criminal procedure pattern was completely destroyed.

   To change a perspective, if the investigating authorities all the testimony is true, without trial, the investigation organ directly according to testimony to qualitative, the case was.

   From this point of view, since the court, and quality certificate, it should let the lawyers from different angles to the investigative organs have questioned the testimony, including present evidence to the contrary.

   Objective to find a lawyer witness because lawyers believe the witness's statement has a problem, need him to testify truthfully, ask him Is it right? So return a responsibility? What makes you say that? You must speak the cleaning up.

   So, if the witness testimony is the original problem, must change the idea. Only in this way can we cross examination, real defense, to help the court to ascertain the facts, the applicable law.

 

    Tian Wenchang.If the testimony will not change, lawyer makes no sense; while the testimony once changed, the lawyer will be in danger. This is actually a kind of paradox of dilemma.

 

    Han Jiayi: from judicial practice lawyer's point of view, the article 306th of the criminal law on Lawyers in the case of continuous expansion. Grasping the lawyers time is before the court, the court process, also after the court; from investigating whether the situation, investigation of evidence law is caught, not only because the defendant investigation witness change confession, lawyers also caught. In short, as long as there are problems of verbal evidence, lawyers are in danger.

   We can say with certainty, a criminal defense lawyer in court contact witnesses are my great fear and caution. If the court for lawyers for witnesses to be ignored, to ensure that the witnesses to appear in court, and the court statement is, who will take the evidence?

   Every lawyer caught not only single responsible party, which caught lawyers feel very fear, and that fear is also deeply affected more in criminal defense and will be engaged in criminal defense lawyer.

   Beijing recently happened such extreme cases, because the defendant estoppel court, lawyers in court refused to defend.

   This phenomenon, in fact is the case the emergence of lawyer caught cause. Develop and may appear more extreme cases, lawyers in the detention center, a party to change the previous statement, he said "I don't do, I want to quit".

 

The traditional philosophy cannot tolerate lawyers legal confrontation


　　"Rule of law over the weekend": the concept of criminal procedure of article 306th of the criminal law outside the greater than its own problems. This is related, the article 306th of the criminal law, coupled with our traditional ingrained in the center or at the center of the thinking, in the traditional concept, is not a lawyer to make a substantive defense, go against the true sense of the legal.If the lawyer even such rights are not normally exercise, then the defendant's right to a fair trial and how to guarantee?

    Tian Wenchang.It can be said that from the fundamental ideas of criminal defense system the contempt or negative, the entire society has not fundamentally realize the criminal defense system's role is to safeguard judicial justice.

   In the west, ancient Rome period have defended the embryonic form of the middle ages, there is a criminal defense lawyer, and the lawyers to defend the system China only 30 years.

   Because of China lawyers to defend the system history is too short, in this case, the concept of law is very indifferent, even very exclusive.

   Understanding the concept of lawyers now is not profound enough, especially the most typical judicial circles, including judicial circles outside of the public and officials, and even the law itself also some lawyers are not fully understood. So, this is an important reason for these years I shout lawyer location problem.

   In this case, the concept is totally screwed up, why are you a lawyer? Doesn't recognize the lawyer is an important force in safeguarding judicial justice, that you are making trouble, is New problems crop up unexpectedly..

   Back to our topic, with investigation as the center, as long as the investigation is over, "dishes" side to the table, you have to eat. Even an objection, the taste is not good can not be said. This denial of the lawyer system fundamentally, is very dangerous, terrible.

 

    Han Jiayi.Although it is not our traditional concept abide lawyers legal confrontation, but our current legislation is actually trying to change the idea.

   For example, by the national prosecution in a person, in order to prevent abuse, maintain stable social order of state power, on the one hand through legislation to restrict the state power, on the other hand through the legislative protection, increasing the rights of the accused, make originally not equal both basic fair dialogue. But the legislation idea that has not been understood and executed very well.

   To understand the root causes of the legal principle theory of law, a defendant subject to criminal investigation, he must have had a defensive mentality, must choose the sophistry, even lie, will have to choose on their own favorable statement. The defendant did not have self incrimination obligation. The defendant confession, the liability to the lawyers and lawyers, shall be investigated for responsibility, this is the traditional concept instead of the spirit of rule of law.

   Economic interest is not high, little space, plus the impossible to guard against the "306 club", criminal defense narrower is inevitable. The lawyers "draw on the advantages and avoid disadvantages" also is very normal. But, for one is committed to the construction of rule of law, lawyers have avoided punishment case not normal.

   How to protect such a force, such a team, from the case of continuous outbreak of rational thinking, standing in the protection of human rights in a country under the rule of law to safeguard and realize the goal, this is an important question we must consider. If you can't let more criminal defense lawyer to criminal defense stage, criminal defense rate low, simply can not talk about "the position and role of criminal defense lawyers in criminal procedure". When the defense lawyers involved in criminal cases into individual cases, the taxpayer is the basic rights, how to safeguard human rights, justice and how to get clear, even can't see.

 

The system should be designed to avoid malicious execution law


　　"Rule of law over the weekend": down this problem, we do further thinking. If you modify a criminal law, the article 306th of the criminal law to him from what? Don't say lawyers occupation environment immediately relaxed?

    Tian Wenchang.If fundamentally change the criminal defense lawyer situation, enhance the criminal defense lawyer status, changes to the criminal defense lawyer concept, it is indeed a difficult, lengthy process.

   But the article 306th of the criminal law is a landmark legislation, due to the leading role of it leads to so many lawyers in prison, only to cancel, to eliminate the negative effects, from this perspective, we must abolish.

   The abolition of means to tell people, lawyer's status should be respected, the role of lawyers should be treated correctly, should not be so promiscuous. This suggests that effect, is not to be ignored.

   Of course, from the fundamental solution to the problem, not only to article 306th of the criminal law, but also relates to many other aspects, but article 306th of the criminal law should be cancelled.

   Based on article 306th of the criminal law is derived from the criminal law amendment thirty-eighth, this time the criminal procedure law, the Ministry of justice and the National Lawyers Association are clearly put forward written opinions of specific, strongly called for the abolition of criminal law thirty-eighth. Cancel the criminal law article thirty-eighth, article 306th of the criminal law to cancel.

   After inspection, the two legal systems in the international, no country has similar provisions of article 306th in the legislation, the provisions of the United Nations "and the basic principles on the role of lawyers" provisions of the basic concept of conflict.

 

    Han Jiayi: really aware of lawyers in the judicial role, the significance of positive and progressive, important role and value of human rights, the concept of change, is a difficult process. For a long time, whether in theory or in practice, the debate is, in order to improve judicial team concept to suppress the legislation more thoroughly, or as soon as possible and improve the legislation to limit the philosophy behind misreading legislation more practical. Facing the practice status of criminal defense lawyer present, I tend to design this point of the system to avoid the law be malicious to understand and implement.

   Change the substantive law substantive law has a long way to go, misreading the impossible to guard against, so we should from the procedural law to explore how to limit, to avoid the idea of rule of law is a failure.

   For example, as the medical industry certification of medical accidents, lawyers association should also be identified lawyer violates the pre procedure, occupation occupation moral code, then the role of lawyers association development only from the legal profession, lawyers, lawyers of the social value of angle measure law behavior in the case, make the responsibility, to decide whether to go the judicial way for lawyers. The lawyer association autonomous behavior can be thinking about the problem from higher social law perspective.

   Also, can from the judicature, legislation is strictly prohibited in conflict, "war" is one of the two parties become judges, lawyers for all cases have different jurisdiction. Let the abuse of power by the judiciary cost increases, the risk becomes large. He will consider Is it right? To abuse of judicial power.

   Again, the settings from the procedural perspective, identify perjury must wait till the end of a lawyer to handle the case after the trial, after the court found the perjury facts, judicial organs to draw bar association review case lawyers behavior.

   The system sets all must let the lawyers to criminal defense team, through the system settings to the guiding idea. If a simple repeal article 306th of the criminal law, and no other system to protect, relief, even the abolition of no use, there will be 307th of the criminal law or other charges for lawyers.

(this article source: rule of law over the weekend)
 
 
 
Extended reading: the Ten Session of the National People's Congress on behalf of Zhang Yan motion (2006 March "NPC and CPPCC")
 
The four reason to cancel a lawyer perjury

　　Zhang Yan suggested the abolition of article 306th of the criminal law

　　                                             Legal systemNetworkReporter Guo Xiaoyu

　　

   Article 306th of the criminal law, commonly known as the lawyer perjury crime, since the criminal law the implementation date, around this one argument not to interrupt.

NPC Zhang Yan firm in Shaanxi Datang lawyer.Last year, she participated in the inspection of law enforcement of the NPC Standing Committee to carry out law to the identity of the National People's congress. Zhang Yan tells a reporter, the inspection team found, from lawyers most intense call was canceled lawyer perjury. She said, this article objectively has caused the deterioration of the environment, the prosecution and the defense lawyer malpractice, imbalance intensifies occupation revenge one after another, lawyers reputation, should be modified as soon as possible.

A bill this year, Zhang Yan submitted, cited four reasons to cancel the lawyer perjury.

The first reason is affected by the impact, the present situation of lawyer. She said, after the criminal law was revised in 1997, lawyer practicing security reduced, greatly increase the risk of criminal defense practice to guarantee security, defense counsel. Fear makes lawyers not to carry out a comprehensive survey in accordance with their own design scheme, to give full play to the role of lawyers.

Zhang Yan told reporters in a group of data, in 1995 the National Lawyers Association received the lawyer rights case only a dozen, and criminal law revised in 1997 and 1998, every year more than 70, which relates to the criminal law 306th stipulation all rights case 80% cases. The data suggest otherwise, within the scope of national lawyers involved in criminal cases is less than 30%, and this proportion is still in decline.

The second reason is the lawyer perjury, witness testimony to change problem, in practice it is difficult to define.

Zhang Yan said, the terms in the help, lure words such as the lack of clear definition and standard definition, the objective to increase the risk for lawyers, well versed in criminal legal counsel are difficult to predict the boundaries of their action is illegal and legal, don't know in the future which will a acts constitute the crime of perjury.

Zhang Yan thinks, guide, induced many times is a lawyer to help recall when the skill and the method, well intentioned guide and induction is effective, but also should be allowed. However, according to the provisions of this article, the lawyer once seducing witness to change or perjury behavior, not the seriousness of cent, constitute a crime. What behavior is against the occupation moral behavior, which behavior is no clear boundary between crime behavior. Zhang Yan thinks, this directly involved in criminal law, violated the criminal law as a last line of defense of the idea.

The third reason is the terms of the lawyer set to special subject single is not appropriate, and our country in line with international standards of the overall development of ideas against.

Zhang Yan said, a special subject in the criminal law theory set the reason, is the special status of subject of crime and the obligations and responsibilities of specific. The lawyer nature and responsibility of their own work, in addition to comply with national laws and regulations, providing legal services and management in the legal profession and occupation moral guidance, and ordinary citizens compared to no special. In the criminal law for the law separate charges, Zhang Yan think is not very appropriate.

The fourth reason is the illegal acts of the lawyers of the nuisance of evidence or prejudice to testify, can be applied to article 307th of the criminal law.

In judicial practice, the individual lawyer by driving interest or other reasons, the existence of the phenomenon of perjury. Strictly prohibited, severely punish the individual lawyer obstruction of evidence behavior no ground for blame, but can fully in accordance with the obstruction of evidence to the judicial personnel behavior applies to article 307th of the criminal law. Zhang Yan said, it also can be seen, the 306th and 307th stipulation exists overlapping part, this calls for highly strict criminal law can not is a defect of legislation technology.

Zhang Yan said the amendment to the criminal law, 306th conditions are mature, should be in the criminal law amendment abolished the clause.

(source: Legal Daily)