The basic criterion, lawyer occupation moral 　　

A lawyer should be loyal to the Constitution and the law, adhere to the facts as the basis, take the law as the criterion, practicing in strict accordance with the law. 　　

Lawyers shall be loyal to their duties, adhere to the principles, law and social justice.

A lawyer should be honest and trustworthy, diligent, conscientious to safeguard the legitimate interests.

A lawyer should be dedicated industry, efforts to study business, master should have professional legal knowledge and service skills, and constantly raise the level of practice.

A lawyer should cherish and maintain lawyer occupation reputation, abide by social morality, pay attention to cultivate character and occupation moral.

A lawyer shall keep state secrets, keep the commercial secrets of the trustor and trustee's privacy.

   A lawyer should respect the peer, peer cooperation, fair competition, to improve the level of practice.

   A lawyer should conscientiously perform their obligations of legal aid, provide legal assistance for recipient.

   A lawyer should abide by the lawyers association, earnestly fulfill their obligations.

   A lawyer should actively participate in social welfare activities.

Two, the lawyer how to make your own card?  

A lawyer must publish the following contents: name my name, identity, his law firm name, practising certificate number and contact way. The two is a lawyer I identity must be compiled "lawyer" of the word, can be stated as the lawyer firm position. The three is a lawyer I served in the bar association's position, not compiled with I practice law firm on the card. Four is the lawyer business card shall have no lawyers experienced, professional and technical titles and a lawyer's practice is not related to the content.

Three, simple procedure and common procedure have what distinction

(a) the difference between the criminal summary procedure and general procedure

1, the summary procedure applies only to the grass-roots court.

2, the simple procedure is only applicable to the facts are clear, the confession of the defendant's case.

3 simple cases, only for the case of first instance.

4, tried by a single judge.

5 cases of public prosecution in court, prosecutors can, can not appear in court.

6, the court investigation, court debate simplified procedures. Interrogate the defendant, questioning the witnesses, authenticators, show under the court debate procedure evidence, limitation.

7, the summary procedure can be changed to the ordinary procedure of first instance. 179th of the criminal procedural law stipulates: the people's court in the trial process, that should be the summary procedure is not appropriate for in accordance with the provisions of section 1 of this chapter or section second of the re trial

(two) the difference of the simple procedure and the general procedure

1, the different applicable scope: trying a simple civil case facts are clear, the relationship between the rights and obligations are clear, the controversy is the basic people's court and the tribunals dispatched by it, apply summary procedure. Therefore, the simple procedure exists only in civil cases of first instance in the process, and applies only to sue to the grassroots people's Court of first instance of civil cases; and, need to have clear facts, the relationship between the rights and obligations are clear, less controversial conditions, to apply the simple procedure for trial. Civil general medical dispute the two sides dispute is very big, and relates to a medical professional, the facts are not clear, is not suitable for the trial by the simple procedure, but the judicial practice, the basic people's court in civil litigation in medical dispute, have a tendency to abuse the simple procedure, at present there are more civil cases on medical disputes is to apply the summary proceedings of the. Civil litigation cases of ordinary procedure applicable to the provisions of article one hundred and forty-two of the trial.

2, make different requirements: summary procedure applies to the trial of civil cases, the plaintiff may indict verbally, the parties concerned may at the same time, to the basic people's court or tribunal dispatched by it, request to resolve disputes; apply the ordinary procedure case, in principle the plaintiff must submit a written complaint to the people's court, the plaintiff in the lawsuit is only written difficulties, can only be an oral complaint.

3, the trial staff is different: the application of simple procedure in civil cases tried by a single judge, apply the ordinary procedure to try a case, a people's court after accepting the case, shall form a collegial panel, and in the collegiate bench personnel to determine, within 3 days, inform the parties.

4, the hearing process requirements are different: the summary procedure is simplified to the ordinary procedure, the preparation before trial, the court investigation and debate in the court order order no ordinary procedure that strict regulations, can use simple ways to summon at any time the parties, witnesses, if both sides at the same time to the court to resolve disputes, can even hear the case immediately.

5, the trial period is different: civil lawsuit legal provisions for trial period, different summary procedure and common procedure, simple procedure trial period is short, and can not be extended, specified as follows: the people's court shall apply the summary procedure in the trial of civil cases, should be made the case within three months from the date of application of ordinary concluded; the case in the process of the case, shall be concluded within six months, if extension is needed, approved by the president of the court, may be extended for six months, also need to be extended, submitted to the people's court at the next higher level for approval.

6, the simple procedure and the general procedure of transformation: provisions in the Civil Procedure Law of China about the simple procedure and the general procedure is conditional on single direction, namely: the summary procedure applies to the trial of the case, in the trial process, we found that the case is complex, need to be converted to ordinary procedure case, can be converted to ordinary procedure according to the general procedure; have case happened changes, whether in the trial process, shall not use the simple procedure of hearing.

Four, the lawyer accepts the case process 

   (1) entrustedConsultation.Do the "reception record" and attached.

   (2) handleEntrustmentUnified case, unified, assignment, unified fee.

   (3) analysis involved in the caseThe legal relationshipLaws and regulations relating to access, and extract or copy the case, put forward to suggestions and attached.

   (4) entrust or parties involvedThe legal document, to the parties or relevant departments.

   (5) investigation and collection, extract or copy the case markingEvidence materialArrangement, and bound, cover attached list of evidence should specify the serial number, name and origin, purpose of supporting evidence, a number, number of pages, the original or a copy of a copy, the courts and other departments, a file.

   (6) major difficult, model, intended for innocent defense, may have a significant risk of cases to lawyers collective.

   (7) to appear in,Quality certificate, the hearing recordAttached, and.

   (8) Write the words, defence agencyOr other legal opinions, the relevant departments to send a court, a client, a file.

   9.ProcuratorateWrite the summary, binding, archiving.

   Lawyer civil procedures

Five, all kinds of cases are required to prepare evidence :

1, the plaintiffs qualification certificate

A, the parties are individuals, ready for an identity card or household registration department;

B, the unit is ready to certificate of registration, business license or corporation etc.;

2, prove the defendant qualification

A, the other is personal, provide a copy of the ID card, if not provided, by the law to the public security department investigation to obtain the other census data;

B, the parties are unit, to provide business license or corporate registration certificate copy, if not provided, by the lawyer to industry and Commerce Department survey of other business registration information;

3, calculated on the basis of the dispute amount

Such as: list of principal and interest, the interest rate determination basis, collection period; the evidence materials in addition to the above all kinds of cases are required to provide the following are the various cases, also need to prepare evidence:

(1), loan dispute

A, that borrowing relationship existing evidence, for example: IOU, IOU or loan contract or agreement, the repayment commitment etc.;

B, has been shown to repay the loan and interest of evidence, such as: receipt, proof of payment etc.;

(2), the sale of goods and other debt disputes

A, prove that the seller relationship exists evidence materials, such as: the order / delivery of the contract / agreement, orders, if only in the form of oral established trade relations, provides the testimony of a witness or to prove that the contract has been performed certificate;

B, show evidence of contract performance, for example: the delivery bill, clearing the list, confirmation, payment arrears repayment plan, single, quality objection book etc.;

(3), real estate disputes

A, prove the existence of the sale of property relations, such as: pre-sale housing contract, commercial housing sales contracts;

B, and real estate commitments prove, for example: real estate advertising, real estate developers written commitment;

C, prove, for example: 1629 invoices, receipts, bank transfers, bank loan contract proof;

D, prove, for example: the delivery of real estate in the notice, take notes, acceptance handover, residential single key received guarantees, housing quality books, postponed others notice book etc.;

E, housing quality problems or area error proof, for example: real estate, housing survey report, the quality test report;

(4), shareholder rights dispute

Proof of the existence of A, equity, for example: the articles of association of the company, the capital contribution certificate, share certificates, receipts, capital verification report;

B, damaged the interests of shareholders or other withdrawal of capital contribution or not in place or other damage to the interests of the company to prove, for example: the certificate of capital, capital verification report, the resolutions of the shareholders' meeting, the profit distribution plan, the company report book, unfair competition transaction documents etc.;

Six, a lawyer to handle civil, administrative case process

   The Commission stage:

3.1 customer reception:

3.1.1 introduces the customer to law firms and lawyers;

3.1.2 know, the principal, the other party or the relationship between human;

3.1.3 understanding of the relevant facts, a preliminary analysis of the legal relationship and judgment;

3.1.4 and the client of and reasonable scheme;

3.1.5 to be commissioned as the main purpose, preliminary analysis and determination of the legal risk;

3.1.6 law firm uniform charging standards, preliminary quotation.

3.2 commissioned and avoid review before the conflict of interest, according to the "Regulations" of the conflict of interest review system:

3.2.1 if there is no conflict of interest and should be avoided, can accept the authorization;

3.2.2 had a conflict of interest or shall withdraw, obtain exemption letter issued by both the client in accordance with the law, can accept the authorization.

3.2.3 had a conflict of interest and should be avoided, it shall explain the reasons to the customer, can not accept the entrustment.

3.3 counsel should be cautious, honest, objective to inform the principal legal matters entrusted to the possible risk;

   3.4 to discuss and determine the scope, the matters entrusted agent content, agency authority, agency cost, agency period principal-agent contract shall specify the content of.

　3.5 with the customer to determine whether to establish trust relationship, the lawyer made the case number.

Accept the Commission, apply for commissioning procedures:

The 4.1 sign and obtain the "agency agreement", "power of attorney" and other formalities;

The 4.2 lawyers to fill in "the case table" to establish trust relationship column explains: whether to fulfill the obligation of informing, has signed a document, agreed the charges; whether the / advance charges;

The 4.3 seal management in "the case table" to establish trust relationship column to indicate whether the firm stamp;

4.4 financial charges and customer invoices, and in the "case" to establish trust relationship table column indicate the charges and invoice situation;

4.5 required by law to the costs (including but not limited to: litigation, arbitration, notarization, authentication), the customer shall be prepaid expenses (including but not limited to: reasonable traffic, communication, copy translation costs), the lawyer charges should be issued a receipt for the customer, and the customer made clear in the agency at the end with regular bills and customer settlement. And in the case "table" to establish trust relationship bar.

4.6 regular automatic inclusion and charge statistics. Statistics according to the provisions of newspaper senior partner, business department.

Five, determine the plan stage:

5.1 commissioned after the conflict of interest and avoidance review, according to the "Regulations" of the conflict of interest review system:

5.1.1 accept the Commission found conflicts of interest or should avoid situations, such as in accordance with the law to obtain exemption letter issued by the client, can continue to perform the contract.

5.1.2 accept the Commission found conflicts of interest or should avoid, not in accordance with the law to obtain exemption letter issued by the client, should remove entrust relation party consultation, the consultation fails, and after signing the contract party or not to pay legal fees of a party is entitled to terminate the trust relationship. Perform archiving program.

5.2 risk control:

5.2.1 to achieve the existing evidence, conduct in-depth research and Analysis on the existing evidence;

The 5.2.2 query relevant laws, regulations, cases and relevant academic opinions;

5.2.3 an investigation to determine the direction and to obtain evidence, and carries on the investigation work;

5.2.4 according to the above results, risk analysis, to determine the preventive measures.

5.3 determining the scheme:

According to the "5.3.1" case of collective discussion provisions, apply for and carry out case of collective discussion, discussion records, fill in "the case table" collective discussion bar.

5.3.2 determination scheme;

5.3.3 submit corresponding law review, by lawyers in the case corresponding to "review" quality and risk control of filling out the plan review comments;

5.3.4 and clients to discuss the plan, exchange of views.

Six, implementation stage:

6.1 court preparation:

Should be submitted to 6.1.1 for power of attorney, lawyer's letter and other procedural legal documents;

Analysis on procedural issues, 6.1.2 main considerations: jurisdiction, subject, aging problem;

6.1.3 collation and analysis of the facts:

A Forensics: evidence should follow the rules of subordinates;

A. lawyers shall not falsify evidence, not to the intention or purpose of litigation, illegal evidence, change the content or attribute.

B. lawyer in the evidence collection process, should treat the evidence material to the objective and realistic attitude, not related to the case to their staff likes and dislikes the evidence, not to their own imagination to change the original forms and contents of the evidences.

C. lawyers shall not threatening, luring others to provide false evidence; shall not use other people's privacy and illegal behavior, coercing others to provide evidence inconsistent with the actual situation; may not use the material or non-material interests tempt others to provide false evidence.

D. lawyers not to judicial and arbitration institution knowingly submit false evidence provided by others.

E. lawyer in understanding of the truth of the situation, not that the principal or the relevant personnel issued no basis in fact evidence to support the client claims or negate each other claims adjudication and arbitration.

F. lawyer as witnesses, shall not be appointed the defender or agent to appear in court.

B proof:

The C statement of fact ideas;

D on the other evidence of cross examination;

Relationship between E evidence to prove the problem.

The 6.1.4 query related laws and regulations, the case, academic opinions and analysis;

Extraction and analysis of 6.1.5 focus on the case of;

6.1.6 analysis and Countermeasures of risk;

6.1.7 and client communication, determine the mediation program;

6.1.8 work record.

The 6.2 session:

6.2.1 court records;

The 6.2.2 trial instrument specification:

A to participate in the trial, must be in accordance with the provisions in the barrister clothing, pay attention to the image lawyer occupation

B barrister clothing should be clean, smooth, no breakage.

C court, male lawyers may not wear long hair shawl, female lawyers may not wear heavy makeup, face clean, neat hair, do not wear too much striking.

6.2.3 body voice

A speech in court hearing shall be civilized, decent, express opinions shall use standard language, as far as possible the use of putonghua. Shall not use slang, language specification language.

The B trial speech should be dignified and generous, can be hand type with necessary, avoid too much body movement.

6.3 after court work:

6.3.1 and client communication court case;

6.3.2 such as the need for additional evidence, and submitted to the court;

6.3.3 agency comments submitted to the court.

The 6.4 sentence:

6.4.1 receive judgment;

6.4.2 and client communication case results;

6.4.3 determine the need for Follow-Up Services.

6.5 execution and other civil procedures.

   Seven, closing phase:

7.1 inform the principal working end, the legal documents, information, related items returned to the client;

7.2 for prepaid or collecting fees, shall be settled by the "principal agent contract" agreed.

7.3 please fill in "quality legal services feedback card";

7.4 fill in "the case" the case report table column, the final report should include a content: closing time, results, is required for subsequent legal services, whether to file objects; lawyer fees are paid in advance; / collection costs whether settlement; whether to recover the "quality legal services feedback card".

The 7.5 test;

7.6 business department responsible for the final examination, by the business department is included in the "table" case closed filling out the final review comments: whether complete, commitment, attorney fees are charged and so.

According to the "7.7" case quality control system on a regular basis case evaluation.

Eight, archiving:

8.1 lawyers will the paper archives to archives management personnel, the electronic files to archive;

8.2 file management staff for filing register, on the case, charging, file check;

8.3 check the paper files and electronic files are missing items, such as missing, please complete the lawyer;

8.4 file management staff reserve volume;

8.5 file.

Nine, according to a "quality legal services feedback rules" about complaints, receive and solve the complaints, the final result of filing complaints

Seven, in criminal cases, lawyers and lawyers:

The provisions of international human rights law: even if the parties suspected crime also deserve justice! Each misstep parties, may have experienced life suffering, that suffering just let him go to great extremes, and eventually lose their freedom and become the weak! The lawyer, should be based on careful strategy, be struck with fright eloquence, unremittingly efforts, as in the jail and defend their dignity party records! This, the lawyer's mission!

(a) the role of lawyers, public security in the investigation stage:

(1), to the investigation organ about the alleged offense, proposed to meet requirements, public security organs should generally be arranged to meet at 48 hours to 5 days;

(2), met the suspect: understand the current situation and demand, after being arrested, whether by assault, understand the case and to provide the corresponding legal advice etc.;

(3), apply for obtaining a guarantor pending trial: after the meeting, such as bail conditions, can apply for bail;

(4), on behalf of appeal, complaint: if investigators and prison personnel violate the personal rights, to put forward relevant departments complaints, charges, thereby reducing the infringed may. The public security organs do not want a lawyer too much in one of the reasons.

(two), the stage of review and prosecution lawyers role:

(1) associated with the procuratorial organs: consult, extract, copy the file documents

For verification material;

(2) and meet and correspond with the criminal suspect: the lawyers have the right at any time to meet with the parties to the case; 

(3) the investigation and collection of materials relating to the cases: to personnel or departments concerned with the case investigation, collect evidence of innocence or light offence;

(4) defended or agency comments: if the crime is minor, can suggest prosecutors not to prosecute, the party released;

(5) has been extended detention, have the right to request according to the law to release or the implementation of bail;

(6) the personal rights are infringed upon, have the right to appeal, accuse.

(three), the court of first instance stage the role of lawyers:

(1) review under the jurisdiction of the court under the jurisdiction of the case is that legal jurisdiction: improper, inappropriate cases under the jurisdiction of the investigation organ, have the right to request the return to the court, the case or to;

(2) consult, extract, copy the indictment, list of evidence, witness list, the main evidence copy or the photos as evidence;

(3) according to the particularity and the case of each case, develop defense strategies;

(4) meet the defendant: listen to the statement of the accused and excuse, discovery, verification, to clarify the facts of the case and evidence of contradictions and doubts, especially as follows mainly: the identity of the accused and received the time, whether to admit the indictment charges, charges the facts and circumstances, motivation, purpose is clear, accurate; the indictment accused of a plot exists; the defendant not guilty on justification; there is no light, reduction, exemption from punishment fact, plots and clues; whether the meritorious performance; whether the detention and legal rights and interests are hurt by the super period. And to the defendant in court procedures, told the court's litigation rights, obligations and the matters needing attention;

(5) according to the actual situation of investigation and evidence collection;

(6) the court investigation and debate;

(7) after the adjournment of the work.

(four) the role of lawyers, court of second instance stage:

(1) during a trial lawyer appeal, the defendant can be met, to listen to the content of the judgment and opinions on whether to appeal, and provide legal help;

(2) shall be the defendant's request, write the appeal, appeal not infliction;

(3) the defendant appeal appeal cases are generally not the trial, lawyers shall have the right to submit a written defense opinions to the court, can provide new evidence;

(4) for a trial, such as the second instance court review, found that the facts are not clear, the evidence is insufficient, can revise the judgment after ascertaining the facts or rescind the original judgment, the retrial; such erroneous application of the law, inappropriate, and shall be amended.

(five), how to hire a lawyer?

1, what relatives shall have the right to entrust a lawyer?

The parties any close relatives can entrust, including: father, mother, son, daughter, wife, husband, brother, brother, sister, fellow sister.

2, lawyers are required to bring what information?

A, with the same account of the accounts department;

B, a different account, that between the principal and the related parties, and therefore must be demonstrated in the residence of the Public Security Bureau issued a kinship;

Marriage certificate with C, the relationship between husband and wife, the client's identity;

In addition, the lawyer also need to know the name, gender, date of birth, identity card number, what is what the Public Security Bureau or the police station caught. If there is a detention warrant, warrant also please bring. Of course, if you do not know the specific circumstances of the can also be made to the relevant departments to investigate the lawyer, just as more departments, the lawyer investigation could take several days of work.

3, entrust a lawyer to handle what procedures? Lawyers answer:

The principal first telephone contact, appointment, then according to the agreed time personally to the lawyer go through the following procedures:

A, a law firm and its client signed the "contract" in two copies, one copy by the principal, a law firm;

B, the client to sign "authorization" in six copies, as lawyers for;

C, pay the lawyer fees.

(six), as relatives and friends, I can see the parties?

The legal provisions of our country: in the verdict, relatives and friends can not meet with the parties.

The lawyer to meet, is the only legal channels to obtain the information of the family. The lawyer to meet and get to know the place and the cell number in concrete, can communicate with friends and relatives. And the requirements in the watch case, can give the parties to money and clothes (items need to be checked, according to the requirements of the money or through the postal remittance form delivery).

Provided business rights and obligations with the criminal procedure law, the provisions of eight law lawyer of lawyers in the rights and obligations have what concrete difference?

The lawyers law and criminal procedure law, there are many contradictions and conflicts in the aspects of the specific content of lawyer's rights and obligations, exists in various cases in practice, excuse me specific differences and differences in what place?

A: a lawyer the right:

1, met the right time:

The lawyer law: the first interrogation or coercive measures taken to date.

Provisions of the Criminal Procedure Law: the criminal suspect is interrogated by investigation organ for the first time or date of coercive measures.

Conflict: delete the criminal law in the word "after".

2, met the right procedures:

The lawyer law: in any case, shall not be approved.

Provisions of the Criminal Procedure Law: cases involving state secrets, the lawyer meets with the criminal suspect in custody, shall be subject to the approval of the investigation organ.

Conflict: lawyer law changed the rules of criminal procedure law must be approved to "state secrets" and other cases.

3, met with the right of state:

The lawyer law: the meeting with the criminal suspect, the defendant, was not listening. If the monitor does not allow, certainly does not allow investigators to present.

Provisions of criminal law: 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.

Direct conflict: lawyer law breaking the criminal law, clearly stipulates the rights not to be listening when meeting.

The implicit conflict: lawyer law has the investigation organ "presence right".

Appendix relevant law:

The lawyer law the thirty-third regulation:

The suspect 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 letter, have the right to meet the criminal suspect, defendant and understanding about the case.

The lawyer to meet the criminal suspect, defendant, not monitored.

Ninety-sixth the provisions of criminal procedure law:

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, accuse agent. If the criminal suspect is arrested, the appointed lawyer may apply for bail. Cases involving state secrets, the criminal suspect to hire a lawyer, shall be subject to the approval of the investigation organ.

The appointed lawyer shall have the right to the investigation organ about the crime suspected of, and may meet with the criminal suspect in custody, the suspect information related to the case. 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. Cases involving state secrets, the lawyer meets with the criminal suspect in custody, shall be subject to the approval of the investigation organ.

Thirty-third the provisions of criminal procedure law:

Since the case is transferred for examination before prosecution, public prosecution cases, criminal suspects have the right to entrust defenders.

The people's Procuratorate after receiving the case transferred for examination before prosecution within three days, should inform the suspect has the right to entrust defenders. The people's court after accepting a case of private prosecution, within three days, should inform the defendant has the right to entrust defenders.

Two, about the lawyers:

Conflict: a range of marking the right of lawyer law and criminal procedure law, the obvious contradiction, the scope of the lawyers law is far greater than the provisions of the criminal procedure law.

Related articles:

Lawyer law thirty-fourth commissioned since the case of the date of review and prosecution, 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.

Thirty-sixth criminal law lawyers of the people's Procuratorate date, consult, extract, copy the file documents, technical identification of material, can meet with the criminal suspect in custody and communication.

Defense attorneys from the day the court handles the case, consult, extract, copy the case of the facts of the crime accused materials with the defendant in custody, can meet and communication.

Three: about lawyers right of investigation and collecting evidence conflict point:

1, the direct conflict:

The lawyer law, lawyer investigation of evidence, without any approval, as long as the "by lawyers and law firms practicing certificate to prove, to investigate relevant units or individuals undertaking legal matters with the situation."

The Criminal Procedure Law: lawyers for witnesses and related units, must be "with the consent of the witnesses or other units and individuals concerned". While the lawyer forensics on the victim, you must "with permission of the people's Procuratorate or the people's court, and the victim victims or their close relatives, provide witness agree, can collect information pertaining to the current case to them."

2, the implied conflict:

Lawyer law made no time limit for evidence after the authorized lawyer, that is to say, after the lawyers suspect principal, can carry out the work of investigation and evidence collection, investigation, prosecution and trial across three stages.

The criminal procedure law on lawyers to investigate evidence, clearly limited in accepting the prosecution later. In the investigation stage, only "rights lawyers provide legal advice, complaints, charges, application for bail. Without the right of investigation and evidence collection"

Appendix relevant law:

The lawyer law thirty-fifth authorized lawyer according to the 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.

Thirty-seventh criminal law attorney with the consent of the witnesses or other relevant units and individuals, can collect information pertaining to the current case to them, can also apply to the people's Procuratorate, the people's court for the collection and obtaining of evidence, or request the people's court to inform the witnesses to testify in court.

Defense lawyers with permission of the people's Procuratorate or the people's court, and the victim victims or their close relatives, provide witness agree, can collect information pertaining to the current case to them.

Article ninety-sixth of 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, accuse agent. If the criminal suspect is arrested, the appointed lawyer may apply for bail. Cases involving state secrets, the criminal suspect to hire a lawyer, shall be subject to the approval of the investigation organ.

The appointed lawyer shall have the right to the investigation organ about the crime suspected of, and may meet with the criminal suspect in custody, the suspect information related to the case. 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. Cases involving state secrets, the lawyer meets with the criminal suspect in custody, shall be subject to the approval of the investigation organ.

Nine, the criminal law article306A: Lawyer perjury

Controversy

Before Li Zhuang case, most people do not know the 306 terms as it is, but in the criminal justice system, it is a trap for having heard it many times. By the 306 terms "pack" of Li Zhuang, and ten years ago many similar cases.

In 1998 June, the Heilongjiang lawyer Xu Yufeng is serving eight months. He is a theft defending a client, the defendant confession is not a, repeatedly, the parties in the repeatedly asked for said lawyers teach, so Xu Yufeng was just out of the 306 in terms of accountability, the evidence is only one -- the suspect's testimony. The two procedures, lawyer Xu Yufeng is still not out of the french.

The Xu Yufeng case is just one. "Financial" reporters get an incomplete statistics from the National Lawyers Association, which included the 107 law case since the 306 implementation of the. "Li Zhuang should be 108th." Deputy Secretary of the all China Lawyers Association said Rick red.

According to incomplete this, a total of 32 lawyers were eventually convicted, more than 60% of the case was "resolved before trial". Several settle a matter by leaving it unsettled cases, some reason is "public security can not find people".

"306 clause has become the most handy weapon, but you will get rid of your fight! Cast not away your pack, you!" Beijing a lawyer so evaluation of 306 terms of abuse status.

306th first appeared in the 1997 October implementation of the "criminal law", which is still used today. During the draft discussion, had specifically for the Justice Department, and other units of the views China law. The focus is on the suspected "discrimination" -- everyone has a "qualified" under penalty of perjury, why to separate a lawyer? "This is the occupation of discrimination, and even become the law enforcement activities of procuratorial organs of revenge." One participant said.

306th after the 307th, is provided for general subject of perjury, when questioned, "why can't the two merger, the lawyer, as a member of citizens".

At a Justice Department leadership seminars at that time, vice chairman Wang Hanbin of the NPC Standing Committee said that this provision was not discussed, the voice of the controversy was stopped, about this in terms of the opposition will not be adopted.

Over the next 13 years, the annual national "NPC and CPPCC" NPC deputies have submitted a proposal, request to amend or repeal article 306th, there is a lot of reasons, such as the alleged industry discrimination; "lure" one word is too vague, lead to arbitrarily applied; and the international law of judicial immunity of inconsistent with the spirit, and even many people directly use "evil" is a word of its qualitative.

Over the years the proposal only one reply, and no substantive results, only the content of the proposal into the relevant legal correction research work.

The lawyer contact line 306th events every year, resulting in controversy always borrowing strength of the sky. But with the group disputes, the industry for the gloomy colors, controversial core value anti drown.

In fact, with the gradual expansion of judicial practice, more and more lawyers found, "the conflict between the lawyer law" and "criminal law" and other laws are not solved, a criminal defense lawyer living space is still relatively narrow. Between the two laws existMeet the difficult, difficult, hard evidence of marking "three big conflict"Again, leading lawyers in the criminal defense ratio decreased year by year.

First of all, "lawyer law" provisions, shall not be monitored lawyer suspects. But the "Criminal Procedure Law" regulation, the investigation organ to staff at the scene according to the circumstances of the case and the need, as a result, the public security organ dispatch police presence is not illegal, but also can be said to have illegal.

Secondly, "the law of criminal procedure" defense lawyer can only consult, extract, copy the file documents, technical identification of materials. The "Lawyers Law" provisions, in addition to the right to defense counsel, and access to, reproduce, copy of the materials, such as witness testimony, the defendant's confession.

Third, "the law of criminal procedure", defense lawyer since the procuratorate for examination and prosecution of cases to date, to investigation and evidence collection. The "Lawyers Law" stipulates, lawyers can begin their own investigation in the investigation stage, much earlier than "criminal procedural law" the regulation time. In judicial practice, lawyers when forensics completely subject to the investigation organ.

Thought "lawyer law" to protect the rights of their own, reduce the agent risk, and as people would like. The lawyers soon found, if the conflict of legislation and article 306th of the criminal law together, the problem is far more than "hard work" is much more serious.

In fact, from the legislative proposals until the new "lawyer law", the judiciary and lawyers have been in the hope that through the "Lawyers Law" to weaken "criminal law" article 306th influence. Many people think that, "the lawyer to meet the clients are not prescribed monitoring" is at 306th. But in the judicial practice, lawyers law in public security, procuratorial organs do not like "". Some people think it is the Department of law, and had nothing to do, some people think that it is "the law of criminal procedure law", do not constitute a confrontation. They are more willing to on the basis of "Criminal Procedure Law" to deal with criminal cases.

At the beginning of 2008 8, the NPC Standing Committee Law Committee in reply CPPCC proposals pointed out: "the new revised" lawyer law "practice experience," the lawyer of criminal procedure law "right to practice in criminal litigation and some concrete problems are the supplement, actually is the law of new modified" the relevant provisions of the criminal procedure law ", which should be according to the revised" lawyer law "provisions."

This response plays a certain influence in the judicial practice, after breaking the 306th lawyers in the case, there have been very few dare to take the case handling organ recordings and transcripts as evidence.

But the 306th power remain. Don't listen to as evidence, but investigators are still in monitoring, the confession is still often regarded as lawyers to encourage and induce results, according to the 306th way to catch the lawyer and sentenced, can still only when the thing for the population, without the need for using other evidence.

     Law weekend: Criminal Law306The pain

   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 theHanging 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 the Law School of Beijing Normal University): for the provisions of the criminal code 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.

　　

    The criminal law article306A source in Criminal Procedure Law Article38A, the latter is in1996Add years to the amendments to the criminal procedure law. 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 the judicial practice of 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: this can be said to be from the basic concept of the criminal defense system of 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.

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.

The criminal law article306A really say what

 Article 306th of the criminal law stipulates perjury defender, agent. According to "work report" activist lawyers association statistics: 1999 to 2002 lawyer for performing the duties of the alleged crime: Defender obstruction of evidence (including the crime of defender destroy or falsify evidence, the crime of corruption crime) 347; 21; 112 cases of fraud crime; embezzlement crime of false accusation 1; 10 the crime of tax evasion; 11; disclosure of state secrets two; intermediary agencies issued false certificates of two.

And in recent years, all levels of court trial of criminal cases of rising is in sharp contrast, since 2006, Shaanxi province criminal defense lawyer in court has been a sharp decline in the rate of. According to statistics, in 2006, lawyer of Shaanxi province an average annual commissioned to carry out the criminal defense, already from 1.56 in 2003 down to 1.16. That is to say, the average a lawyer a year over criminal cases, only about 1 pieces. In Beijing, this is a worrying number, according to statistics, the annual per capita of Beijing lawyers handling criminal cases of population has fallen to less than 1 pieces. Statistical data shows, 2000 Beijing lawyer 5495 people, the annual handling criminal cases accounted for 4300, the annual business 10.2%. Per capita in handling criminal cases from 2.64 in 1990 dropped to 0.78 in 2000. This statistic is now also greatly -- now lawyers in Beijing has more than 8000 people, the scale has been over 4 years ago, an increase of nearly six into. More and more lawyers don't want to be a criminal case. Criminal defense lawyers at a "thing", many people think that "criminal law" Article 306 to blame. article 306th of the criminal law, in legal circles, law circles have is. In 2006, the National People's Congress, Shaanxi Datang lawyer Zhang Yan, once in "NPC and CPPCC" in put forward "the abolition of Article 306 of the criminal law" bill. That year, she participated in the National People's Congress Standing Committee of lawyers law enforcement inspection, the identity of the National People's Congress, the inspection team found, from lawyers most intense call was canceled lawyer perjury. She put in motion, 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.

Article 306th of the criminal law of the text: "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 years more than seven years of fixed-term 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."

What is destroyed, falsifying evidence? Here the "evidence" is not clearly defined. From a legal perspective, guilty behavior should refer to the documentary evidence, material evidence of forging or destroying. In the law of criminal procedure "evidence" seven forms defined but includes the suspect, the defendant confession and exculpation. Thus, application of consequences absurd out: the defendant overturned the original confession this very reasonable behavior, he could become a "destroyed the original evidence, lawyers crime forged new evidence".

What is the threat, seducing witness to change or perjury? Here the "lure", did not explain the definition, in the actual operation can easily be misinterpreted and malicious use. The lawyer asked by some skills to question witnesses, has also been identified as "lure". In addition, the witness in the investigation stage hypothesis was torture to extract confessions made false statements, in the lawyer's persuasion, witness changed his testimony, although this is clearly not a lawyer perjury, but public, inspection authority may justify retaliation lawyer, to be arrested. Not afraid of you finally acquitted, anyway, you have to sit for a period of time in jail for a period of time. In this possible risk threat (have occurred repeatedly in practice), lawyers are often reluctant to engage in criminal defense work (Beijing those major suit lawyers are background, the general law can not be compared, even) in criminal defense, are often unwilling to witness the future survey evidence (plus unwilling to the defendant to consult, Li Zhuang the end is the best lesson). In such a the power obviously unfair conditions, how to guarantee the quality of criminal defense? How can you ensure that criminal suspects and defendants rights and interests are not infringed upon?

Can be seen from the above analysis, the 306th article of the criminal law is an evil law regulations hundred-percent, must be banned or make major changes, otherwise China legal situation will seriously deteriorate. I as a law-abiding citizen, for the protection of the safety of my own reason, make a strong appeal. Although our society is not a society ruled by law, but the law system, is a great progress compared with the cultural revolution period, we cannot tolerate any retreat on the basis of the. Our society needs the law, especially criminal defense lawyer!

The criminal law306A: defense lawyer Damour Chris sword

 

["criminal law" the 306th stipulation: in the criminal prosecution, defense and agents ad litem, destroy or forge evidence, to help the parties destroy or forge evidence, threat, inducement 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 to seven years in prison. The first reading of the criminal law realized 306 in actual judicial operation may cause unfair to the many years ago, but did not expect as law enforcement of public security organs, also really so always enjoy it, turning fushouweiyu used this evil law, in criminal operation this is perhaps their most to invoke "procedural justice" specification. This paper from the Li Jianqiang (nickname Liu Lu) of "inaction in the crossroads -- my lawyer experience" three lawyers perjury, Department of the former human rights lawyer in the mainland on the U.S. imperialism there, on his own lawyer real record. ]

 

 

Trained in Beijing

 

The winter of 1996, I got a chance to Beijing to accept the criminal lawyer training, at that time, Chinese are introduced two important criminal law, criminal procedure law and criminal law. The Ministry of justice in the purpose of training is to develop a number of standards, with the new legal standard defense personnel, need to apply to the situation. The Justice Department invited the Supreme Court, the Supreme People's Procuratorate, the Ministry of public security and the Institute of political science and law scholars to lecture, these people have participated in the formulation of the two law.

 

Speaking of criminal law and criminal procedural law was enacted in 1979, started in 1980, to 1997 have been practiced for 17 years. Application of this Law in two legal start-up time requirements, provision is simple, rough, some provisions are unreasonable charges, along with the change of society brought by the transformation of social life and concept of value, these laws have not suitable for the requirements of the times, re enacted the criminal law has exceptionally high. In 1996, the NPC Law Committee to take the lead, the Supreme Court, the highest Procuratorate, Ministry of public security and the Ministry of justice a combination of two bodies, hired some join in criminal law a renowned scholar, be full of sound and colour made amendment.

China first generation of leaders, Premier Zhou Enlai had stressed, national security, public security department in half. The judiciary has an image interpretation of public security, public security is cooking, procuratorate is sending food, the court was eating, a lawyer is a poor boy, on the sidelines of the find fault with it, for this meal is to eat, how to eat, very little effect. Decided this meal of fate, mainly in the public security.

 

Our teacher is mostly judicial elite, such as the Supreme Court Criminal Trial second court presiding judge Zhang Jun, is now the Supreme Court chief criminal's vice president, the national two level of justice. Zhang Jun graduated from the Jilin University School of law, after the Cultural Revolution (this is Chinese the best law school), is the court of the young guard, was also speaking more casual. He to the public security forces expansion situation depressed court authority very dissatisfied, also complained about the new law on Lawyers occupation discrimination. He pointed to the regulations of the criminal law 306th stipulation defender, agent of perjury crime and criminal procedure law limits the lawyer's right to defend, published copious and fluent speech for over an hour. Zhang Jun is a remarkable memory, eloquence good, law and law at all times and in all countries, the law proverb, the famous jurist writings view, Western classical precedent and so on, he can have one's words at hand, escape one's lips, as the demonstration base their opinions. Zhang Jun think, the 306 formulation of the lawyer's right limit, it is reflected in the new system of public inspection two creation stage of rule of law of hesitation, fear and a wait-and-see attitude, the service quality of their team not self-confident, the Department legislation reflects the departmental interests, sun Zhongshan said that the whole world as one community, we are engaged in legislation for the private, the private sector, is of interest.

 

University of political science professor Chen Guangzhong also invited to give us a lecture. His sincere words and earnest wishes to say, the promulgation of the new law is a progress, but we probably will have excellent lawyer many pay for the progress of the rule of law. Because the new law actually gives the prosecution evidence can not be challenging. Theoretically speaking, the prosecution allegations from angle of evidence, with distinct utilitarian purpose, must be objective defy logic, this property is in fact the justice does not recognize the prosecution evidence, otherwise we should not hold up in court through cross examination to confirm its effectiveness. However, there is a problem, the prosecution's evidence once fixed, they found the problem, is not correct, if they find the witness a prosecution evidence inconsistent testimony, theoretically equal to the witness perjured himself, or the defense or prosecution, but contradictory testimony is not true there will be a fake, false, or both, thus has the right of investigation, the prosecution can arrest, speak from the angle of draw on the advantages and avoid disadvantages witness may not say to the testimony is false, is said to the lawyer's testimony is false, this "false" testimony is how to make out? Nature is a lawyer induced. Thus, if the prosecution lawyers evidence consistent with, to help the implementation of evidence, so no significance to defend, if with the inconsistent, will constitute a "lawyer perjury", because in this process, the prosecution is not only the athlete, is the judges, such an asymmetry of the contest, the lawyer which retreats possible?

 

As Professor Chen said, the new law was enacted in 2 years, the all China Lawyers Association statistics, since the charges was arrested lawyers in the country has more than 500. The most famous is the Henan Central Plains the first lawyer Li Kuisheng, because a corrupt official defence, accused of crime of perjury, crime of fraud and crime of forging official documents and several charges, exercise into prison, sentenced to 15 years in. The latest example is Beijing lawyer Li Zhuang in Chongqing a case of alleged confession, change induced by the parties, to suborn witnesses, sentenced to 2 and a half years.

 

A lawyer should how to avoid violating the criminal law article306The provisions of

                           -- by Li Zhuangan speaking

 

The Li Zhuang case has settled the dust in February this year, was sentenced to a year and a half, although on the Li Zhuang case is not fully understood, but from the relevant reports and warning education information, as a lawyer, I have a deep feeling, to recognize the "criminal law" 306 article should be, rather than simply call for revocation.

According to "nanfengchuang" reported in July 8, 2010: the National Lawyers Association "306 statistical data" show, from 1997 306 out to 2007 10 years, the 108 lawyers sued, and eventually convicted for 32, Li Zhuang case after the verdict, a member of the CPPCC National Committee, chairman of the association in Ning said to the court submit the proposal in this year's NPC and CPPCC, requirements on the "criminal law" Article 306 judicial interpretation, but he soon abandoned this plan, in Ning explained, is it too "in NPC and CPPCC sensitive", he again may play a negative role, the two is some problems need to be studied, Yu Ning thought "criminal law" article 306th of the criminal defense lawyer under a lot of pressure, a lot of people have been advocated for the abolition of, the that the abolition of more difficult, but the judicial explanations have.

The author as a lawyer, to the "criminal law" Article 306 also complained, but we in the "criminal law" to all of the terms, the heart seems to be calm some, such as the "criminal law" stipulates that the 305th "perjury" this will be the subject is limited to witness, identification, record, translators. The terms in addition to witness, the record clear for public security personnel specialized in the records of the people, and "criminal law" 247th stipulates the crime of torture to extract confessions, is specifically for investigators say, the "criminal law" to the provisions of article 399th "the crime of misuse law in Adjudication" is for the judicial personnel and relevant personnel, all this there are many provisions, this is not one one lists. So we can't call for a taste of the provisions of the "criminal law" Article 306 pin, but should focus on lawyers should be how to be loyal to their duties, and how to avoid "criminal law" the provisions of Article 306, especially the "criminal law" between 247 and 306, and sometimes even the existence of the sharp conflict it is not you, "death" is my life "". Either that the investigators' torture to extract confessions, forgery or lawyer, seducing witness to change, and the public security organs and the control of the investigation right of lawyer, little attention will be placed on file for investigation, the game both sides into a party can be held the other party at any time, namely some lawyer jokes "the plaintiff to catch the defendant". In this regard, our lawyers to keep on the alert, ready.

Loyal to the law, adhere to the agency cases according to law, the defense case,, loyal to the truth

If in order to obtain high interest to wrest the law, distorted the facts, and even induce others perjury, the investigators' torture to extract confessions is a truth, who also can not save you, this is a simple question of common sense.

Several problems should be paid attention to during the meeting two, lawyer

Li Zhuang case outbreak, originated from Li Zhuang to suspect Gong Gangmo in the court claimed by the public security organs of torture to extract confessions. We believe that the vast majority of lawyers, not too instigated crime suspect, but little attention appears many obscure problems, I am afraid this is not the case of Li Zhuang problem. Lawyers in the interview, encountered this phenomenon, many suspect after the public security organs and other relevant units after the inquiry, influence each other in the detention center, coupled with its individual lawyers believe that their own people, they will often refer to this problem, in this regard, the lawyer should remain on high alert, from the three aspects of the following work:

(a) if the criminal suspect has surrendered plot shall inform the relevant legal provisions he surrender to surrender, which has three elements, one element is must truthfully confession the case, but if a criminal suspect confession, there may not be identified to since the first plot. And surrender to the plot, and the statutory mitigating, mitigating circumstances, so that, the criminal suspect might weigh weight, in most cases will no longer adhere to the so-called "torture to extract confessions" problem.

(two) if you do not surrender to the plot, also should tell the confession of the circumstances of the crime belongs to the discretionary lighter punishment, at the same time to the legal consequences of combined with the previous record again to inform the suspect's confession.

(three) for the lawyer told the above obligations, but the suspect also adhere to extor confession by torture, the lawyer should be favorable, rational, festival.

A, the prosecutor is favorable, and the prosecution of the contact, in the possible situation can also copy the personnel of interrogation. For indeed torture to extract confessions, the suspect will generally in the prosecution filed. That is to say, the prosecution personnel records are not lawyers, "lure", so that you grasp the initiative, in an advantageous position.

B, rational, which is in accordance with the law, in recent China judicial history, appeared in two cases, one is the case of She Xianglin, a Zhao Zuohai case, which touches our judicial top, which issued the "provisions on evidence in death penalty cases" and "illegal evidence exclusion rules". Therefore, we should be in accordance with the provisions of startup procedure.

C, a festival, take the above procedures, the illegal evidence can be excluded, no judicial personnel of torture to extract confessions found, lawyers should be so far, in awe of the law. Socrates also asked the jailbreak is justified? A convicted person even if he is sure that unjust accusations against him, to escape the legal sanction is justified? "Apology of Socrates" the dying Saint said the last sentence is "break up to, I to die, and you to live, who place good, only God knows." His spirit is shown on the evil law fear of an ancient philosopher, and moreover we be in power of the people's Republic of China enacted the law? As long as the lawyer with legal means, we will have no what a pity, and on the other hand if we through the above procedures that the criminal punishment and torture, this, as the law also can not get dizzy with success, wantonly attack on the scout, but can stop.

Three, should pay attention to evidence for lawyers in the criminal case problems

Li Zhuang case is suspected of perjury was sentenced to prison, so the lawyer in investigation of issues should be cautious. Combined with his experience in handling cases, I think we should pay attention to the following several questions:

A, relates to the testimony of a witness, witness statement must insist, such a witness in court by three party quality certificate, generally do not have what problem, can also prevent the witness changing testimony on the same problem again, finally in the lawyer to passive. In addition to court in the witnesses, lawyers and witnesses is best not to meet, in order to avoid unnecessary trouble,

B, evidence procedures must be legitimate, here are some points to note, one is the victim of evidence, shall comply with the provisions of the criminal law thirty-seventh stipulation, specific provisions, "defense lawyer with the consent of the witnesses or other relevant units and individuals, can collect information pertaining to the current case to them, can also apply to the people's the procuratorate, the people's court for the collection and obtaining of evidence, or request the people's court to inform the witnesses to testify in court; lawyer with permission of the people's Procuratorate or the people's court, and the victim victims or their close relatives, provide witness agree, can collect information pertaining to the current case" to them, we remember the legal provisions. The two is to the justice the original witness evidence must be quasi steady. For example, I am in the process of a criminal case, the witness said "may" and "probably" mean in the prosecution's record, lawyers think this problem in the investigation is not clear, so further evidence, received a positive response, so that this issue be clarified, public prosecution organ also have nothing to say. Three is a must abide by the relevant organs of the program such as the evidence, in handling the criminal case, to be held in a Hanzhoung prisoners forensics, two assistants, I went to Hanzhoung prison, but Hanzhoung prison but reply need to be approved by the Provincial Bureau of prisons, my assistant phone from Hanzhoung, ask I can find someone to accommodate them, I immediately notice two people back to Baoji, and arrived in Xi'an, specially visited the prison administration bureau. Bureau of prisons to produce the relevant formalities, two assistants, once again at Hanzhoung, had evidence, and the prison management cadres present evidence. Then we provide the evidence to the court, while providing the Prison Administration approval procedures, from the formal requirements on an official stamp, more to enhance the credibility of evidence, the evidence eventually adopted by the court. At the same time, can not make mistakes lawyer forensics, because lawyers involved in the criminal case is divided into three stages, some members of the criminal suspects "save" eager, first requires lawyers to collect evidence, some lawyers forgot the task of lawyers in the investigation stage, early evidence, but by the investigation organ that interference detection, finally The loss outweighs the gain. Four is to do the investigation notes must be more than two people, when possible, record one, questioning two people, many a person has less of a risk. At the same time in the notes should be stressed on many occasions should be truthful, and told it should bear the legal consequences of perjury, this statement at least in the investigation notes at the beginning and end of the show two times, also asked the witness to sign on every page, record, do not leave any stone unturned.

Four, for lawyers in the confidentiality obligation in criminal cases

(a) the criminal case is different from the civil case, civil case information from the parties and lawyers to collect evidence, so feel free to the public. But the sources of criminal cases by public security organs. So we can't get the material criminal cases casually disclosed to the parties, in order to avoid the suspect relatives after that find each other in collusion, lawyers not as collusion.

(two) nor by the criminal suspect relatives will help to material. For example, I am in the process of a criminal case, the parties in order to further strengthen the defense force, also hired a lawyer in Xi'an, the lawyers busy, let the relatives of the previous copy materials referred to him, I immediately pointed out that the vulnerability, the lawyer also deep Ming Yi, immediately sent to me. Retrieve the data. Therefore, lawyers should pay attention to every detail in handling criminal cases.

(three) is not delicious head to suspect leak case related information, remember that lawyers in handling criminal cases statusIndependentThe.

In a word, how to avoid the criminal law 306 stipulation, is a sensitive topic, as mentioned above, may not be entirely correct, this is only valuable, in attempt to induce Tongren more attention.

"Criminal law" article 306th and the lawyer's rights

One, "criminal law" article 306th does not constitute the lawyer's occupation discrimination

Some scholars believe that the "criminal law" the 306th regulation of unfair discrimination, constitute the occupation of lawyers. They think, "criminal law" article 306th as a lawyer for a special subject, blurring the boundaries between the lawyer responsible and illegal, contributed to the negation and restrictions on Lawyers due diligence agent, constitute the occupation discrimination of lawyers. The provisions of article 306th greatly dampened the enthusiasm and confidence in the law case, the implementation of direct impact on the new "criminal procedural law". Separate provisions of lawyer's perjury will cause negative influence in the society, the law can play the major role of doubt in criminal defense, criminal defense lawyers to hard work in a more difficult situation. Originally, the new "criminal procedural law" is not conducive to human rights law, to abolish the housing review system, established the system of exemption from prosecution, the legitimate rights and interests to protect the defendant lawyer presumption system, early intervention, both sides court testimony, system, the criminal procedure system in China is a major step forward and sure, attracted the attention of world. However, "criminal law" article 306th of the criminal defense lawyer, as for the road. For lawyers, criminal defense became a dangerous job. Even participated in the defense, but also shrink with cold, in order to ease the relationship with the public prosecutor. The result is a criminal defense lawyer in reducing, the quality of criminal defense is not high, the defendant's rights are not effectively protected. "Many excellent system of criminal procedure law" can not give full play to utility and really implement, directly affect the construction of democracy and legal system, affect China's judicial justice image. Therefore, the so-called "306 should be abolished". The author thinks that this viewpoint is worth discussing. The reasons are as follows:

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"Criminal law" the 306th is a special subject, namely, limited to the criminal activities of the defender, agent ad litem. In accordance with the provisions of "Criminal Procedure Law" article twenty-third, the following persons may be appointed as the defender: (1) lawyers; (2) recommend people groups or criminal suspects, defendants unit; (3) the suspect, the defendant's guardian, relatives and friends. An agent ad litem refers to the agent entrusted by the victims of criminal cases of private prosecution plaintiffs agent or in the case of public prosecution. In the case of private prosecution, anyone can become an agent ad litem entrusted, in the case of public prosecution, the victim may also authorize any person to be his agent. Visible, "the subject of the crime criminal law" the provisions of article 306th is not limited to the lawyer. And, except as a lawyer in criminal cases the defender, agent ad litem, can also be used for defence agency in civil cases, administrative cases. While the "criminal law" 306th stipulates clearly, the defenders and agents ad litem, only in criminal proceedings, it may violate this. Visible, all business activities are not lawyers have violated the "criminal law" in article 306th may. Since the "criminal law" article 306th of the criminal subject is not limited to the law, and all activities are not lawyers may have violated the "criminal law" article 306th, we can not say that "criminal law" the 306th is a discrimination law provisions.

Although the lawyer is the legal knowledge is far higher than that of ordinary people, and they are to accept the entrusted agency activities for the industry (also for legal advice, help for legal procedures, the violation of business) "criminal law" article 306th may be far more than other people, really can not be that is, in the judicial practice, is often the law violated the "criminal law" article 306th. However, the lawyer should find reasons from itself, and should not be attributed to the legal provisions. Because, indeed the existence of such phenomenon: some lawyers and other defenders and agents ad litem, abuse of power, against the occupation, occupation moral obligation, use unscrupulous divisive tactics to help the parties to avoid legal sanctions. Therefore, they ignore the truth, make every attempt to create false evidence, some of the unfavourable to destroy evidence, some evidence on the beneficial, others to help the parties destroy or forge evidence, others by threatening to lure the witness to change or make false testimony or make not witness as false witnesses witness, etc.. These activities, seriously hinders the normal criminal procedure, violation of civil life, freedom, property and other major interests, or even lead to the occurrence of miscarriages of justice. A large extent, the above phenomenon is the law violated the "criminal law" the 306th is far more than other people more reasons. As the young people are the main subject of crime of violence crime, we can not because of this, think that this is the "criminal law" discrimination on teenagers, and asking for the abolition of "all about violent crime criminal law" provisions in the specific provisions of criminal law, that "306th" is a discrimination law provisions, and request to cancel the. In fact, the provisions of a crime in the crime of obstruction of justice, its legislative intent is to find out the truth of the matter to better, ensure judicial justice. In practice this is improper references that are to a variety of factors, is the law itself, does not have any contrary to justice.

Two, lawyers in the case is transferred for examination before prosecution prior to the implementation of the obstruction of evidence act not convicted and punished according to "criminal law" article 306th

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"Criminal Procedure Law" the ninety-sixth regulation, "the criminal suspect is interrogated by investigation organ for the first time or coercive measures, to exercise its rights, the law has the right to know the suspect alleged offense, have the right to meet with the criminal suspect in custody, understand the case, can hire lawyers to provide legal advice, complaints, the accused agents, and arrested the suspect application for bail." From the analysis of the legal provisions, before the case is transferred for examination and prosecution stage, lawyers can be activities, the most important is met with the crime suspect in custody. Because, in the interview process, he is likely to instigate criminal suspects "confession", the investigation organ cannot obtain the criminal suspect in this important legal evidence; likely to instigate criminal suspects or after the meeting to his relatives and destruction of evidence, or as an intermediary to help the criminal suspect other witness perjury. SoThe lawyer is transferred for examination before prosecution, the stage in the case, most likely in the meeting with the suspect in custody when the implementation of obstruction of evidence of activity. However, any obstruction of evidence at this time are not lawyers activities implementation according to "criminal law" article 306th convicted and punished. This is because, the lawyer also did not have the "criminal law" article 306th of the criminal subject qualifications required. "Criminal law" provisions of article 306th of the only defenders, litigation agent can set up the crime, namely, "criminal law" provisions of article 306th of the criminal's identity. While the "Criminal Procedure Law" provisions of article thirty-third, "since the case is transferred for examination before prosecution, public prosecution cases, criminal suspects have the right to entrust defenders, private prosecution cases of criminal suspects have the right to entrust defenders at any time." Visible, before the prosecution case in transferred for examination before prosecution, criminal suspects are not officially appoint a defender, in the criminal suspect is before the first interrogation in criminal procedure to help lawyers for the suspect apparently is not criminal procedure law on the meaning of the defender. "Criminal law" did not explain the concept of the defenders, it should be in accordance with the provisions of the criminal procedure law. On that subject, "criminal law" article 306th "shall include according to the provisions of the criminal procedure law" in article ninety-sixth, the criminal suspect hired to provide legal advice, agent ad litem, prosecuting lawyers. The author thinks, if the lawyer also including the subject of crime in "criminal law" in article 306th, in fact is without a law against the crime punishment legal principle "is not a crime, no punishment" meaning. Since the law to a certain status of subject of crime as the elements of the crime, identity has become the basic behavior of the punishment, directly affect the establishment of the crime. Then, because before transferred for examination and prosecution stage, lawyers have not been entrusted as defenders, also do not accord with the "criminal law" article 306th of criminal subject requirements, therefore, for the implementation of the obstruction of evidence behavior at this stage, especially the implementation of the obstruction of evidence behavior to meet individually with the suspect, not by "criminal law" article 306th convicted and punished, but only in accordance with the special requirements of the subject of crime is not "criminal law" article 307th "help destroy, crime of fabricating evidence" to the conviction and punishment. From this point of view, "criminal law" article 306th is not specifically for lawyers.

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In judicial practice, the criminal responsibility after prosecutors often transferred for examination and prosecution in the case against the "criminal law" in 306th to pursue the law implementation before this behavior, the lawyer out of court by prosecutors detained. He in a separate meeting with the parties, the reason is the implementation of the destruction of evidence, false evidence, prejudice to testify the behavior, the consequences of the crime happened after transferred for examination before prosecution in criminal lawsuit activity, directly affect the impartiality of judgment. Such views and practices are questionable. The actor does not have a "criminal law" article 306th required subject of crime in the implementation of the qualification of harm behavior. If so, is actually separates the subject of crime and criminal behavior in time and space at the same time and relevance. As we know, the constitution of crime is an organic whole composed of the elements interrelated, interaction. The correct approach is based on the "criminal law" article 307th of the criminal responsibility shall be investigated before transferred for examination before prosecution behavior. Because the "criminal law" 307th help destroy or falsify evidence, the subject of the crime is not including the parties themselves and the criminal proceedings in the defender, agent ad litem, witnesses, appraisers, record, translation. In addition to this behavior without prejudice to testify, the provisions of its objective aspect basically similar with the "criminal law" article 306th. So, if the prejudice to testify the activities, also should be convicted and punished according to testify. It also can be seen, "criminal law" article 306th is not for lawyers.

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Three, article 306th of the criminal law and the criminal immunity

1990 held in the Cuban capital Havana in the 8 session of the United Nations Crime Prevention and the treatment of offenders, Congress passed the "basic principles" on the role of lawyers, lawyers for the publication of its written or oral defense, comments or as the responsibilities and tasks in a court, tribunal or other legal or administrative authorities, shall be entitled to civil and criminal immunity. In order to make the lawyer can get rid of the inner pressure, eliminate the fear of liability of scruples, boldly for the accused plead. "England and the Welsh trial lawyers norms" provisions, in most cases, lawyers immunity against him in court debate speech. Visible, giving the criminal immunity of lawyer in criminal speech and related activities, has become the international practice. Some scholars argue that the "criminal law" 306th article actually is the lawyer's right of criminal immunity.

Lawyer criminal duty includes the following three basic contents: (1) criminal defense lawyers in the comments, not subject to legal prosecution. The so-called freedom of speech, including oral presentations, questioning, and written presentation materials, such as defense etc.. Exemption of criminal defense lawyers speech is different from the freedom of citizens. Exemption of criminal defense lawyers talk is the privilege of lawyers in a court of law can make the speech, not worry about the defense made comments. (2) lawyers to provide or produce documents to the court, in criminal lawsuit material facts, not subject to legal prosecution. (3) in the criminal procedure law, personal freedom, personal rights are not violated. China's "criminal law" the 306th paragraph second, the defender, agent ad litem, show, citing witnesses to provide testimony or other evidence inconsistent with the facts, not forged intentionally, not belong to forge evidence. This is consistent with the above second basically. Visible, "second 306th" in criminal law is the legal basis of criminal immunity of lawyers in china.

In conclusion, the author thinks, "criminal law" 306th article has its rationality, have all sorts of criticism is the understanding of its existence deviation. It and the lawyer should enjoy the right and not completely conflict, in essence, they have a certain consistency. In the practice of the law the legitimate rights of the improper and even illegal violations, it is caused by the "criminal law" in article 306th, it is the Chinese from the ideal society of the rule of law also has certain disparity caused by. As a lawyer, not simply that the "criminal law" article 306th is designed for self occupation, in a cocoon around oneself and cocoon is not, this method is not desirable; as the judicial organs may not abuse "criminal law" article 306th, and naturally or half unconsciously to misinterpret the legislative intent. "Criminal law" article 306th and other provisions, the applicable to everyone is equal, and no legislation is not fair. In the "access to justice" on the road, need lawyers, judges, prosecutors and other legal occupation community efforts.