Modify the criminal procedure law in the eyes of the

                                            This paper\Liu Guiming

After the15We call for and suggestions and even years research, the amendment of the criminal procedure law was finally included in the schedule. One of the most gratifying is, the reform of criminal defense system has become the focus of the revision of the eight.

Talking about the reform of criminal defense system, the lawyers, perhaps the most hope is to2007The new revision of the "Lawyers Law" on the lawyers' rights enrich and perfect, be implemented in the criminal procedure law was revised in. In the past few years has always been debated question is "lawyer law" and "Criminal Procedure Law" which laws more effective? The core problem that is concerned with the lawyers' rights. Specifically, is practicing lawyers"Trilemma", also is often lament for lawyers"The three big mountains"Meet difficult, difficult, hard evidence, marking the occupation problem and practice.

The real problem

First of all, we have a look the lawyers met with the right. Shows that in fifteen years the practice of criminal justice, the lawyer"Meet the difficult"The problem has not been solved, but a worse situation. Moreover, in view of the current situation, since the implementation of the new "lawyer law" the situation is not ideal. Among them, be the first to bear the brunt of the block, is still the conflict from the laws and regulations of the. The original intention of legislation about the lawyer system is not, for cases involving state secrets, lawyer decided to meet with the criminal suspect, the specific time as long as the meeting"Told in advance"The investigation organ, which can be directly to the places of detention to meet the criminal suspect. However, the reality is full of too much accustomed to excuse, such as"Not informed of the investigation organ","Today, leadership is not in"Such as the reason to arrange the meeting. In fact, in the detention house, now faced with is the implementation of the new "lawyer law" and arrange for an interview or on the"Department regulations"The grounds are not arranged with"Be in a dilemma"Choice: to meet, but contrary to law, department regulations; they should not meet, rule-based, is in violation of the law. Finally, they are willing to choose the latter, because the magistrate is not as good as tube. Say, this"Be in a dilemma"The problem for China's detention center, in fact is not what happens. Thus, the difficult problem about the meeting, is not really what new problems, is still the old problem of system level and concept level.
      Secondly, we have a look about lawyers. Because reading right can solve the relevant evidence collection problems brought about by the lawyer to investigate the evidence difficult, especially in criminal proceedings, as the procuratorial agency will be the evidence investigation procedure and all corresponding placed in file. So, the prosecution produced records for lawyers to carry out criminal defense, has special significance. But the current implementation status marking in Chinese criminal procedure rights, marking the right did not play its due role in criminal defense. The main reason is the stage of review and prosecution file content marking is only procedural matters procedures documents, to carry out the defense does not have much of a substantive role. "Criminal Procedure Law" article36The provisions of"Accused of the crime of factual materials"Not all the files, but transferred to the procuratorate for prosecution"Copy directory list of witnesses and evidence, the main evidence". However, to the scope and contents of the material but by the procuratorial organs to decide. In judicial practice, the procuratorial organs in deciding which evidence is the main evidence, sometimes deliberately omitted the evidence that is of great significance to conviction and sentencing, and plays an important role in the defense lawyer. So the reality of asymmetric information, which will inevitably lead to the lawyer before the trial began to acknowledge evidence, nature is also very difficult to effective cross examination in court, of course, is more difficult for the parties to provide high quality defense service.
      Finally, let us have a look the lawyer the right of investigation and evidence collection. No need for reticence, now our country lawyer to investigate evidence difficult problem is still very prominent. Its main features:
      First, lawyers not know what course to take. The law does not clearly give the lawyer s right of investigation. Although the "Criminal Procedure Law" article96Regulation of lawyers in the investigation stage to participate in the proceedings, but did not give the lawyer's right of investigation and collecting evidence. In practice, although the lawyer at this stage can be involved in criminal cases, but because it has not led to not know what course to take investigation power law.
      Second, lawyers feel helpless. Now, in the face of self defense lawyer investigation and application of investigation and evidence collection rights many obstacles. The law of lawyers in the prosecution and trial stages and have the right to investigate and collect evidence and the application of investigation and evidence collection, but in practice, meet the eye everywhere, because of the unwillingness to testify unit refuses to cooperate, the lawyer to also feel helpless. In the law, lawyer, although the right to apply to the people's Procuratorate, the people's court, procuratorate and court for collection, investigation and evidence obtainment or apply to the people's court to inform the witnesses to testify in court, but the lawyer in the judicial practice to apply rarely, judicial authorities agreed to apply for and even fewer lawyers. On the contrary, the judicial authorities refused a lawyer for increasing it further reduces positive law application.
      Third, the lawyer incapable of action. The prevalent practice risk reality, many lawyers often neglects to forensics, fear of forensics. As everyone knows, the lawyers, the main risk of criminal defense are mainly derived from the investigation activities. "Criminal Procedure Law" article38Regulation, defense lawyer shall help the criminal suspects, defendants to conceal, destroy or falsify evidence, or collusion, threatening, luring witnesses to change their testimony or conduct other acts to disturb the proceedings of the judicial organs. While the "criminal law" article306The provisions of article, because of the law violations and crime are blurred and"Threat","Lure"That standard is not unified, all of these are very easy to become a sword some of the judicial staff lawyer revenge. So, the expert thinks, "lawyer perjury" on the surface "in criminal law306"The problem, but actually has its roots in the" criminal law article38Article".
   

Legislative subject

Thus, the majority of lawyers, especially criminal defense lawyer for the amendment of the criminal procedure law and placed greater expectations, the judicial coordination and execution and whether, first of all it is essential, in the legislative level to solve the criminal procedure law is revised and must2007Between "lawyer law" of the year.

Specific performance in how to break the "Trilemma" problem:
      One, on the right: from"3"To"Three not"
The new "lawyer law" article33The provisions:"The suspect since the first interrogation by the investigatory organ or coercive measures taken to date, the lawyer commissioned by a lawyer's practice certificate, certificate of his law firm and a power of attorney or legal aid official, has the right to meet the criminal suspect, the defendant. The lawyer to meet the criminal suspect, defendant, not monitored."This is a major breakthrough in the old "lawyer law" and "criminal law". Obviously, this is conducive to the promotion of the role of lawyers play, improve the quality and efficiency of justice lawyer, is conducive to safeguarding the legitimate rights and interests of parties. According to this stipulation, the lawyer to meet the criminal suspects and accused persons do not need approval by the judicial organ, only need to take"3"The lawyer's practicing certificate, proof, that is, the power of attorney or lawyer legal aid can directly access the letter.
As one of the basic human rights of the parties, as well as the lawyers' rights, the criminal defense work, right between lawyer and client are an important part of the right of criminal defense lawyer, also a prerequisite to understand the case, to defend and protect the suspect, the defendant litigation rights. We can see, provisions about the right new "lawyer law", in two aspects breakthrough "Criminal Procedure Law": one is the lawyer to meet the suspect or the defendant, in any case, all without approval. While the "Criminal Procedure Law" article96Article2Paragraph, cases involving state secrets, the lawyer meets with the criminal suspect in custody, shall be subject to the approval of the investigation organ. Two is the lawyers met the suspect, the defendant, was not listening. While the "Criminal Procedure Law" article96Article2Paragraph, the lawyer meets with the criminal suspect in custody, the investigation organ may according to the circumstances of the case and the need to present. At the same time, we can also conclude that, lawyers should also not limited to the number of. Thus, it was concluded that, because of the meeting"3 "Direct extension, right of the meeting"Three not"That is, not be monitored, without approval, without limit.
Thus, we can see obviously, our legislature really strengthened the protection of the lawyers' rights. In the National People's Congress Standing Committee, had the Committee put forward clearly, the suspect, the defendant is an important content to meet with a lawyer to exercise their right of defense, whether or not involving state secrets, the criminal suspect, the defendant is entitled to legal assistance lawyers, at the same time the lawyer as citizens of a country with secrets confidential obligations. Therefore, we should cancel the provisions of lawyers to meet with the criminal suspect, defendant approval procedures. At the same time, the lawyer to visit the suspected criminal, of course should be carried out with safety measures in place, should not be on the meeting places to distinguish whether the security measures. Therefore, in order to ensure the lawyer's right and the legitimate rights of criminal suspects, should cancel the restrictive provisions of relevant meeting places, lawyer to meet regulation of criminal suspects, defendants, not monitored. The final result is, most members accepted this view, the top legislature eventually will this keep perspective became as clear as noonday.
About two, marking the right: from"Read what book?"To"What you reading?"
The new "lawyer law" article34The provisions:"The appointed lawyer since the case of prosecution, to date, have the right to consult, extract and duplicate litigation documents and case material. The lawyer of the case by the people's court date, have the right to consult, extract and duplicate the case and all materials."As everyone knows, the lawyer enjoys reading right, is the smooth development of criminal defense, civil litigation and the necessary means of proxy agent. The lawyer through access to files, can achieve mastery of facts and evidence, familiar with and understand the purpose of the case. According to the regulations, rights of lawyer should include the following contents:
One is the"Read what book?"Is a lawyer review the files materials. There are actually two aspects, one is authorized or appointed lawyer, since the date of the case review and prosecution, have the right to consult, extract and duplicate litigation documents and case materials; two is the case by the people's court date, the lawyer has the right to consult, extract and duplicate all materials related with the case of the
    Two"How to read?"The lawyer way. Lawyers can not only access to the files, but also can be copied, reproduced. Copied, copied material in law firms file.
     Three"Marking at what time?"Obligations which the court, procuratorate of lawyers to marking the negative. As with the materials of a party, whether the court or Procuratorate, shall be necessary convenience for lawyers to provide scoring, and provide the necessary places. At the same time, it must be emphasized that: on the one hand, court, procuratorate should provide a comprehensive, complete archives, including the important evidence court investigation. The law does not stipulate the lawyer must go to court papers, at the trial stage therefore, lawyers shall have the right in the trial stage to the procuratorate to examine all the materials, including prosecutors presented in court and not ready for presentation in court material. "The law of criminal procedure", a lawyer from the stage of review and prosecution can intervene in the proceedings, especially do not prosecuting cases in the procuratorate fitting, material lawyer more necessary access to the procuratorate, the only way to better for the defense of the accused. On the other hand, court, procuratorate should give the lawyer set aside a reasonable reading time. In practice, for some important, complex, organized crime, joint crime, the files often have dozens of roll or even hundreds of volumes, but some courts from filing to the court often only give lawyers a few days of reading time. In this context, a lawyer may not fully marking.    
Three, about the right of investigation and evidence collection: from self evidence to apply for evidence
"Lawyers Law" article35The provisions:"The appointed lawyer according to the case of need, may apply to the people's Procuratorate, the people's court for the collection, investigation and evidence obtainment or apply to the people's court to inform the witnesses to testify in court. Attorney to investigate the evidence, with lawyers and law firms practicing certificate to prove, to investigate relevant units or individuals undertaking legal matters with the situation."   This provision is actually the provisions of lawyer's right of investigation and evidence collection and to apply for the right of investigation and evidence collection.   

In the course of legal proceedings, the lawyer gathered, obtaining evidence is difficult, may apply to the people's Procuratorate, the people's court to collect, access to relevant personnel; and no evidence to testify the duty, without justifiable reasons, a lawyer may apply to a people's court forced the testimony of his office; law litigation or non litigation legal matters, can be their own investigation forensics, with lawyers and law firms practicing certificate to prove, to investigate relevant units or individuals undertaking legal matters with the situation. Can say, to the right of investigation of a lawyer, the new "lawyer law" which is a breakthrough to the relevant provisions of the "lawyers in practice is not conducive to the law of criminal procedure" and the original "lawyer law".
     Indeed, the new "lawyer law" not only broke the "criminal procedural law", but also beyond the reality of China's criminal investigation level, beyond the overall level of China's public prosecutor, beyond the overall quality of China's lawyer, but beyond the current situation of the judicial system in china. So, we suddenly found in the dance for joy at the same time, the implementation of the new "lawyer law", seems to be not so simple, the reality seems to be not so easy. In reality, self evidence is often difficult to apply for evidence, often exist in name only. Because, for allowing only one exception, are not allowed to become a principle. Therefore, the lawyer's right of investigation and collecting evidence on the emergence of a paradox: if you need to get the case through the investigation and collection of evidence breakthrough, they may be dangerous; if there is no investigation, it is very difficult to understand and to find the loopholes, is also difficult to face the eager eyes; if the application of investigation and evidence collection, often results in is not approved expected; if not the application of investigation and evidence collection, itself and the parties cannot obtain any other means of legal remedies. So, the vast majority of lawyers to investigate active forensics decreases, enthusiasm weakened, professional falling.

The foreground subject

More encouragingly, from the criminal law scholars and leaders concerned revealed changes highlight, the criminal procedure law revised the "lawyers for investigation and survey commissioned by the rights of lawyers in the investigation stage, is expected to have the right of defense", and the greater is the highlight of the "code of criminal procedure" and "" Lawyers Law "in the provisions of the basic law of rights of convergence and coordination."

of China University of Political Science and Law professor Fan Chongyi said in an interview with reporters, in Criminal Procedure Law revised in marking the right, right, will be the basic guarantee. In the aspect of the lawyers' rights of investigation, this modification gives the lawyer for an investigation and survey commissioned by the two kinds of rights. More important is the original "Criminal Procedure Law" in "the criminal suspect is interrogated by investigation organ for the first time or to take coercive measures to date, can hire lawyers to provide legal advice, to its appeal, accused of" agent, to "have the right to entrust a lawyer participating in litigation". Previously, the lawyers in the investigation stage only legal advice and help right right, the right to defense is formal also extends to the investigation stage.

The difficulties, a lot of confusion, risk constantly criminal defense system and the criminal defense lawyer, is a good news, and the realization of the rights of citizens, it is a blessing.

In fact, modify the criminal procedure law in order to maximize the protection of criminal defense lawyers' rights and protect the legal rights of citizens.

(Note: This article should procuratorial daily "prosecutor" magazine about, and will be published in the 2011 ninth or tenth stage. Author Liu Guiming China law "editor in chief of democracy and legal system")