[Reproduced by]See Yang Xuelin lawyers article, feel this problem is out. In the case of public prosecution in the judicial practice,Some courts in Guangzhou only allows the victims filed a criminal incidental civil action, the entrusted lawsuit agent can sit on the seat the seat beside the victim agent to participate in the hearing procedure,Other criminal agent is difficult to obtain this treatment.

According to the memory is now listed in court practice I handled three criminal cases. The first case is a two years ago in a criminal case, fraud amounting to1Billion yuan, Guangzhou intermediate people's Court of first instance, as one of the defendant's counsel to the defense in court, and court clerk about good time to court lawyer room marking, I consult and copy all the files. This is when the fraud of the lawyer also came to the examination room, she offers clients to the clerk, also marking. The clerk said in criminal cases only incidental civil action the entrusted agents have the marking the right, the clerk accepted the entrustment formalities, but refused to give the marking. Her explanations to the clerk, but the clerk unmoved, she can only failed. I know that she has the right to scoring, see her as an agent, but its right cannot be exercised as a peer, I also feel not the taste. Because the law and the Supreme Court judicial interpretation has clearly defined the victim (all victims in criminal cases, contains more than the victim in criminal incidental civil lawsuit and its close relatives) commissioned agent ad litem is have the right to consult the case.

At the hearing, the peer to the court will sit in the public prosecutor to the side of the agent's name in the court, but was rejected, the lawyer only lonely sitting in the gallery to attend the trial. Because she submitted the entrustment, when she left right is sentenced to court agent of its parties to receive a court judgment.

Such treatment quickly turn my head up. Not long ago I in a district court of Guangzhou is also the agent a fraud cases, but this is not the role of defender, but held several victims of agent. Procuratorate stage before, the "notice" to the entrusted agent found me, I was commissioned by the agent. I to the procuratorate for examination, Procuratorate approved my scoring application, arranged in a timely manner I refer to this caseAVolume (in Guangdong criminal judicial practice,AVolumes of our lawyers and law examination will be considered program files, is97Criminal Procedure Law36The provisions ofLitigation documents, technical identification of materials). Want to realize the lawyers law at full volume right, now in Guangzhou is difficult. The case went to the court, I submitted the entrustment to the court. Of course, due to the procuratorate to examine the records, the case is also very simple, no court papers. In the court when my colleagues (in the case of another agent ad litem, I had other case trial conflict did not appear) the agent seats wanted to sit next to them in the trial, but was rejected, the reason is also no mention of supplementary civil action in criminal proceedings, so can't. This truth is clearly untenable. First, in the criminal case to initiate criminal incidental civil action on the two kinds of cases, one is the personal injury, property of another kind of party property by criminal damage suffered material losses, the admissibility of the scope is very narrow. Secondly, the law agent can go to trial, the Criminal Procedure Law133Article,138Stipulates clearly.

But there is also a court in strict accordance with the law to protect the victim rights case. This is my court in Guangzhou Development Zone, a few years ago (now has been revoked, the establishment of the Luogang District Court on the basis of) a counterfeit trademark case handles, I as the first defense of the accused person involved in litigation, then be counterfeited registered trademark " Hennessy" trademark rights of a French company sent its the attorney in the court proceedings, the victim is added in the seats next generation of seats. I as the defender did not raise any objection, I think is the court in the equal protection of the legitimate rights and interests of the victim and the defendant. The defendant lawyer in court in the court investigation, and puts forward the opinion of oneself. Safeguard the party's legitimate rights and interests of trademark rights.

This is only the three things I now remember cases. It is not difficult to find, because judges have different views, resulting in the victim criminal cases treatment agent is different, more casual. I think that the development of the district court's approach is correct, remember that the trial of the case long zhang. But in fact the law and the judicial interpretation of the provisions are very clear, we should as a lawyer, a legal weapon, within the law safeguard the lawful rights and interests of the client.

If all the lawyers, of course including myself again encountered as a rejection of the criminal litigation agent encounters the court the court clerk, judge (generally not completely rejected, at least will accept the Commission, before the court session time notice, notice and pronounce judgment when the service of legal documents, a refusal to here mainly refers is the two point: reject agent marking, refused to name the agent agent to participate in the hearing procedure), must be timely to the court to reflect, is essential to reflect to the NPC Standing Committee, of course, it is necessary to make recommendations to the lawyers association, the legitimate claims to the bar association to the judicial organ to reflect a lawyer. In order to truly safeguard the legitimate rights and interests of the parties entrusted.

Lawyer Yang article written in very good, concise and comprehensive, focused, provisions of the facts and the law combined, that is a very important issue for lawyers, lawyers' rights, protection is more concerned about the victim's entity right, should not be overlooked! So I think:The victims in the public prosecution hired lawyers agent is not only necessary, but a clear legal basis.

 

It is necessary to hire a lawyer to the victims in the public prosecution agency

Author Yang Xuelin lawyer

After Yao's case, the agent of the work carried out, caused wide attention. Usually, the lawyer in criminal cases mostly defense for the accused, and served as the agent is not much. This makes a lot of people in this business lawyers are poorly understood, even mistakenly believe that the lawyer as victim agent and agent, only the part of incidental civil lawsuit. In fact, according to the provisions of relevant laws, lawyers as the victim agent, can be represented in civil part, can also be agents of the criminal part.

Some people may say, in criminal cases on behalf of the state, the procuratorate has sued the criminal, but also sent the public prosecutor in court, it is sufficient to maintain the legal rights of the victim. The victim to hire a lawyer, it is redundant. Don't believe the national prosecuting authority?

A criminal case I live for more than a decade ago, may be able to answer this question.

1997At the end of the year, a murder occurred in a village of Zhifu District of Yantai City, the village of summer so and so's wife Liu village, Xu X was stoned to death. Xu X by the public security authorities to"The crime of intentional homicide"Arrest. In accordance with the law, the crime of intentional homicide may be sentenced to death, and by the intermediate people's Court of first instance. But because he has a certain social relations, in their relatives around, but by the Zhifu District People's Procuratorate to"The crime of intentional injury (lethal)"The prosecution to the Zhifu District People's Court (the court). The indictment to the defendant surrendered but also on the grounds, requests the court to grant him a light sentence. This indicates that, the murderer Xu X may only be sentenced to fifteen years in prison.

I heard the summer and introduction of the case, that the above approach obviously favour the murderer, the victim was unfair. I decided to summer and serves as an agent ad litem, and free of all charges. I came to Yantai, to sue a section and the Zhifu area procuratorate first (prosecutor) had a conversation, and access to all the materials. After reading I found, all the evidence proved, Xu x is intentional homicide. I went to the section chief, deputy chief made clear that my point of view, please they early correct qualitative and under the jurisdiction of the error, so as to avoid the passive. But prosecutors said home is already set, can not change. The prosecutor also said I as a lawyer serving only as the victim of civil compensation agent, could not comment on the criminal. I told him, this view is distorted in the new "criminal procedural law". Then, I went to the Zhifu district court, the judge stated my views. I said that the court was wrong, I will make a protest. The chairman of the tribunal asked me to appear in court, what words to say.

Second days, Zhifu District People's court hearing the case, I as the summer a criminal and incidental civil action an agent to participate in the trial. In court, although I sit on a bench with the prosecutor, but we are not friends. In a sense, I became a prosecutor, but the real public prosecutor should plead for the accused. Prosecutors said the defendants are guilty of the crime of intentional injury, and have surrendered plot, suggest a lighter punishment. The defendant's defense counsel for the prosecution's performance is very glad, actively carry out cooperation. The collegial panel of judges also showed a desire intention as the defendant excuse.

I pointed out that: the case is not complicated.1997Years12Month22Evening, the defendant Xu XX and people drink alcohol, to look for an opportunity. At the victim Liu is such and such, both sides quarrel. The defendant Xu XX lose reason, unexpectedly become frenzied with a stone will Liu smashed. Murder crime the defendant Xu x x, the only36Old Liu forever lost their precious lives; elderly mother never lost his daughter; young children lost forever dear mother; and the summer x, the stubborn man, to lose their wife, night secretly tears.

The accused admitted intentionally hurting him, but denied deliberately he kill. To deny the accused, I question the way gave rejected. I asked:"You stoned Liu is such and such a few?"Answer:"Hit seven."I asked"What do you want to do when you hit the first time?"Answer:"I don't want to kill her, just going to teach her a lesson."I'll ask:"What do you want to do when you hit second?"Answer:"Still wanted to teach her a lesson."I asked:"What do you want to do when you hit third?"He panicked, dare not answer. I continue to use the same question has been asked to:"What do you want to do when you hit seventh?"The defendant has not dare to answer. Because he is very clear, has not used"Lesson"To deny. I puncture a fallacy with one remark:"Obviously, if the defendant is until Liu killed to stop, this is not intentional homicide is what?" Thus, in our continuous pressed, the defendant be Agape and tongue-tied, trembling. The public prosecutor has very embarrassed.

I stressed that, one, the defendant has committed the crime of intentional homicide, not intentional injury crime (lethal); two, the case shall be under the jurisdiction of Yantai City Intermediate People's court, the Zhifu District Court has no jurisdiction to hear; three, in view of the defendant Xu X in the court refused to admit it has admitted the crime fact, according to the the relevant provisions of the law, has not been identified as surrender, the defendant does not exist any extenuating circumstances.

After the adjournment, I will collate the views of the written materials, respectively, to the Yantai Municipal People's Congress, politics and Law Committee, asking them to pay attention to the case.

Later, under the jurisdiction of the case qualitative and mistakes corrected, by the Yantai Municipal People's Procuratorate to Xu a crime"The crime of intentional homicide"The prosecution to the Yantai City Intermediate People's court. After the Yantai intermediate people's court and the Shandong Higher People's court trial, the defendant Xu Mou some is to"The crime of intentional homicide"Sentenced to death with a two-year reprieve, compensate the victims, twenty thousand yuan.

Can be seen from this case, criminal victims to hire a lawyer for adults, not make an unnecessary move, but very necessary.

Attached The relevant provisions of laws, policies:

One, "the people's Republic of China Criminal Procedure Law"

Article fortiethVictim in a case of public prosecution and their legal representatives or near relatives, the party in an incidental civil action and the legal agent, since the date of the case is transferred for examination before prosecution, have the right to entrust agents ad litem. Cases of private prosecution and their legal representatives, the party in an incidental civil action and the legal agent, has the right to entrust agents ad litem.

The people's Procuratorate after receiving the case transferred for examination before prosecution within three days, it shall inform the victim and his legal representatives or their close relatives, the party in an incidental civil action and their legal representatives shall have the right to entrust agents ad litem. The people's court after accepting a case of private prosecution, within three days, it shall inform the prosecutor and his legal representative, the party in an incidental civil action and their legal representatives shall have the right to entrust agents ad litem.

Article eighty-secondThe following terms used in this Law means:

Five."An agent ad litem"Refers to the victim in a case of public prosecution and their legal representatives or near relatives in a case of private prosecution, the prosecutor and his legal agent entrusted to participate in litigation of the people and the party in an incidental civil action and the legal agent entrusted to participate in litigation;

139th people's Procuratorate the case, shall interrogate the criminal suspect, to listen to the victims and criminal suspects, the entrusted people's opinion.

Two, the Supreme People's court"Several problems about the implementation of "the people's Republic of China Criminal Procedure Law" interpretation"The relevant provisions

Article forty-second The people's court within three days after accepting a case of private prosecution, inform the defendant shall have the right to entrust defenders; and shall inform the prosecutor and his legal representatives, the party in an incidental civil action and their legal representatives shall have the right to entrust agents ad litem.

Article forty-eighth An agent ad litem responsibility according to the facts and the law, safeguard the victim, private prosecutor or incidental civil action litigant's legitimate rights and interests.

Article forty-ninth The lawyer serves as an agent ad litem, consult, extract, copy the materials pertaining to the case, to understand the. Other litigation agent approved by the people's court, may also consult, extract, copying the relevant materials of the case, to understand the. Need to collect, collect materials related to the case, can refer to this interpretation of article forty-fourth, the provisions of article forty-fifth.

Article forty-fourth Defense counsel to the witnesses or other units and individuals concerned, obtaining collected materials related to the case, because the witness, the relevant units and individuals do not agree, apply to the people's court to collect, collect, the people's court considers necessary, shall agree.

Article forty-fifth Defense lawyers directly apply to the people's court for the collection and obtaining of evidence, the people's court that the defense lawyers should not or cannot ask the witnesses or other relevant units and individuals collected, extracted, and indeed necessary, should agree.

The people's court according to the application for collection, investigation and evidence obtainment defense lawyers, the applicant can present.

The people's court according to the application collection, take counsel's evidence, it shall timely copy to the applicant.

Article fiftieth An agent ad litem shall submit to the people's court shall be signed or sealed by the power of attorney; if a principal is a party in an incidental civil action, litigation agent shall submit to the people's court shall be signed or sealed by the power of attorney.

Article fifty-first The people's court for lawyers, other defenders and agents ad litem consult, extract, copy the case of the facts of the crime accused materials, only collect the necessary copy materials fee.

Article 130th The judge announced that the investigation after the start, should first by the prosecutor read the indictment; have the incidental civil action, the plaintiff in incidental civil action or his agent ad litem read incidental civil pleadings.

Article 133rd The presiding judge auspices, prosecutors alleged in the indictment on criminal facts interrogating the defendant; the victim and his agents ad litem, the presiding judge may grant, the prosecutor interrogation of supplementary questions; the plaintiff in incidental civil actions and their legal representatives or agents ad litem, the presiding judge may grant, incidental civil action part of the truth to question the defendant; the judge permitted, the defense of the accused person and the legal agent or litigation agent in the prosecution was completed after interrogation of a specific problem put questions to the defendant.

Article 138th On charges of each case, the judge allowed, the public prosecutor may appeal to the presiding judge to subpoena witnesses, Jian Dingren and the inquest, inspection record producer testify, or produce evidence, read not present in court, witnesses, expert witnesses and victims of an inquest or examination, the pen recording as written statements, testimony, appraisal conclusion and investigation, inspection record;The victim and his agent ad litem and plaintiff in incidental civil action and the agents ad litem to the presiding judge, can also draw summoned not witness appearing in court to give evidence, identification and inspection, inspection record producer testify, or show the card according to the public prosecutor is not present, read out the written testimony, appraisal conclusion and investigation, not read inspection record.

Article 161st The court debate shall be the presiding judge in charge, shall be conducted in the following order:

(a) the public prosecutor to speak;

(two) the victim and his agents ad litem to speak;

(three) the defendant to defend himself;

(four) defence;

(five) the parties debate.

Three "Lawyers Law of the people's Republic"

The twenty-eighth article of the law may engage in the following business:
(a) entrusted to the natural person, legal person or other organization, the legal adviser;
(two) acceptance of civil cases, administrative cases parties, act as agent to participate in litigation;
(three) entrusted by the criminal suspect, to provide legal advice, complaints, charges, application for bail for the arrested suspect, acceptance of criminal suspects and defendants, commission or the people's court appointed, serving as a defender,Accept the private prosecutor in private prosecution cases, homicide victims or their close relatives as principal, agent, to participate in the proceedings;
(four) accept the Commission, representing all kinds of litigation petition;
(five) accept the Commission, to participate in the mediation, arbitration activities;
(six) accept the Commission, to provide non litigation legal services;
(seven) other documents to answer inquiries regarding law, the litigation documents and related legal affairs.

Four, all China Lawyers Association, "a lawyer to handle the criterion of the criminal cases"　　

The tenth article of the law firm can accept the suspect, the defendant, or his legal representative, entrust relatives or criminal suspects, defendants entrusted by the party, or accept people court appoint, appoint a lawyer for the criminal suspect or the defendant to provide legal aid or as a defender;Can accept and its legal representative of the victims and their legal representatives or near relatives, the party in an incidental civil action, the case of private prosecutor and his legal agent commission, appointed lawyer serves as an agent ad litem;Can accept criminal case the party or his legal representative, close relatives of the Commission, appointed lawyer appeals agent; can accept is not to be prosecuted or his legal representative, close relatives of the principal, appoint lawyers to appeal; make no registration or revocation of the decision in public security organs, people's Procuratorate, acceptable to the victims and their legal the agent entrusted, close relatives, appoint lawyers to appeal or prosecution.

A law firm shall as far as possible to meet the requirements of the principal named principal.

Article forty-firstThe case transferred for examination before prosecution, the lawyer can accept the victim and his legal representatives or near relatives, commissioned by the party in an incidental civil action or legal representative, close relative serves as an agent ad litem. The law firm shall in accordance with the provisions of article thirteenth of the regulations of the entrustment formalities.

The fifty-ninth article of the law as a defender or agent ad litem, according to the provisions of the 139th criminal procedure law, to the people's Procuratorate put forward for the defense, agency views.

Ninety-third defense lawyers in the public prosecutor interrogating the defendant, the victim and the plaintiff to the defendant asked, with the permission of the presiding judge, can ask the defendant. The defendant does not admit accused of a crime, should inquire condition and reason.

The 133rd article of the law can accept the victim (including citizens, legal persons and other organizations have died), a close relative of the victim, commissioned by the incompetent or limited capacity for civil conduct his legal representatives, as its agent ad litem. The clients shall be handled with reference to the provisions of article thirteenth of this specification.

The 134th article of the law serves as an agent ad litem victims in cases of public prosecution, can provide legal consultation, investigation and evidence collection, to consult the case materials, to participate in the trial, safeguard the legitimate rights and interests according to law.

The 162nd article of the law can accept the cases of public prosecution, private prosecution by the prosecutor and his legal representative, as the plaintiff of the supplementary civil litigation agent.May authorize lawyers to file an incidental civil action, including from crimes suffered material losses of victims (citizens, legal persons and other organizations have died), a close relative of the victim, incompetence or limited capacity his legal representatives. The clients shall be handled with reference to the provisions of article thirteenth of this specification.