"Provisions on the lawyer's criminal defense issuesOne(Draft) "the draft

[had] Weichang press

   Yesterday's sudden see @ lawyer Wang Xing v micro-blog, blog post of the Ministry of justice not rules, nor judicial interpretation of the "Regulations", the anger! Originally I am lazy overtime created this"Draft",The legal attribute and the positioning of the "Regulations" with the approval of the attorney, @ Liu Zhiqiang @ King Hing lawyer v comments, too tired, do not comment on, first posted, introduce the Justice Department bigwigs and legal advice!

   Note: the scarlet letter part to modify, add or delete the lawyers section!

The text:

"Provisions on the lawyer's criminal defense issuesOne(Draft) "the draft

One, general provisions

According to the first []In order to guarantee the defense lawyers to practice in accordance with the law, protection of the criminal law correct implementation, according to the criminal procedure law, the lawyers law, the enactment of this provision.

OneArticle second [lawyer] duty lawyer responsibility is put forward according to the facts and law, materials and opinions of criminal suspects, defendants not guilty, a mitigated punishment or exemption from criminal responsibility, criminal suspects, defendants, safeguard the litigation rights and other lawful rights and interests.One   

 Article third [lawyer] lawyer defense shall exercise the rights and obligations shall be protected by law. Defense lawyers to prevent violations of their right to practice behavior, have the right to lodge a complaint, accusation.

   Defense lawyers shall abide by the Constitution and the law, abide by the law occupation ethics and practice discipline, maintain and promote judicial justice.One   Article fourth [authorities] shall be on duty lawyer in criminal procedure law guidance, supervision of the judicial administrative organs and the lawyers association, safeguard the legitimate rights of lawyers.

One   The people's court, the people's procuratorates and the public security organs shall fully protect the suspect, the defendant shall have the right to counsel, to guarantee lawyers perform defense duties according to law.

 Two, entrust

Article fifth [body] CommissionThe suspect, the defendant may entrust lawyers. The suspect, the defendant in custody, also by the guardian, close relatives, and the case of unrelated units colleagues or friends to entrust the lawyer; no guardian, near relatives or guardians, close relatives can not contact, but not in the case of unrelated unit colleague or friend willing to entrust, shall appoint the institution of legal aid lawyer    

Article sixth [and] proposed to delegateThe suspect, the defendant in the compulsory measure is taken after the first interrogation before, the case handling organ shall request the suspect to fill in the "criminal suspects, defendants commissioned lawyer litigation rights notice".

The suspect, the defendant requests by defence lawyers, and proposes the lawyer or law firm, the case handling organ shall request the fill in the "power of attorney", and in the3Days to a lawyer or law firm commissioned its.

The suspect, the defendant requests by defence lawyers, but no specific mention of the lawyer or law firm, the authorities handling the case should be in3Days to the legal aid institutions designated aid lawyer.

The suspect, the defendant requested guardian, close relatives, and the case of unrelated units colleagues or friends to entrust the lawyer, the authorities handling the case should be in3Days notice to the guardian, no correlation between close relatives, and the unit colleagues or friends.

    The authorities in the convey of criminal suspects and defendants, a power of attorney or entrust the requirements, should also be the case handling organ and its responsible and defense lawyers contact staff contact, inform the criminal suspect, the defendant intends to entrust the lawyer or law firm, or its close relative or guardianAnd no association in the case of the unit colleagues or friends.One  

Criminal suspects, defendants commissioned a lawyer, in accordance with the provisions of the preceding five paragraphs.

Article seventh [lawyer told the entrusted]The lawyer receives the Commission, should be in the7Days of the letter submitted entrusted lawyer, told the name, the name of the law firm, the entrusted matters, contact.

One         Article eighth [principal] the confirmation of criminal suspects and defendants, the guardian, close relatives to entrust the lawyer, lawyer first meeting shall be made by the crime The suspect, the defendant confirm the principal-agent relationship.One 

     Article ninth [three cases and inform the principal] crime of endangering national security, terrorism,, particularly great bribery crime, criminal suspects, defendants, relatives or guardians of the other person designated to entrust the lawyer, the authorities handling the case should be and will be entrusted attorney information to inform the suspect, the defendant.One   

   The lawyer entrusted to the provisions of the preceding paragraph case, the case handling organ after receiving the lawyer entrusted this letter, should be the crime, the main facts of a crime and other information in a timely manner to inform the lawyer or law firm.

    Article tenth [] a lawyer shall not serve as defenders in any of the following circumstances, shall not serve as defenders:One   

    (A)Lawyers have to accept - or not co processing but the implementation crime related other suspect, the defendant is appointed as the defender;One   

   Two.The suspect, the defendant has two defenders, and there is no client remove entrust the;One   

    (Three)The staff lawyer was the people's court, the people's Procuratorate, the people's court, the people's Procuratorate from after the departure of less than two years; 

    (Four)Interested lawyers in the case.

    The above fourth requirements of the staff, if the suspect, the defendant's guardian, close relatives, by the criminal suspect, the defendant may entrust its served as counsel.One   

The case handling organ found lawyers shall not serve as defenders case, it shall timely inform the lawyer and the suspect, the defendant.

     Three, interview and communication

Article eleventh [lawyer] asked to meet with the criminal suspect in custody, the defendant requested a meeting with defense lawyers, a detention house shall notify its defense lawyers in twenty-four hours. Defense attorneys received the notification, shall timely meeting.One  

Article twelfth [lawyer] lawyer meets with the criminal suspect in custody, the defendant shall be directly to watch for. The lawyer's practicing certificate of inspection, certificate of his law firm and a power of attorney or legal aid official, shall promptly arrange the meeting. Because the investigators are questioning, meeting places have been other lawyers use special circumstances can not be arranged in a timely manner, a detention house shall explain the reasons to the defense lawyer, lawyer and ensure arrangements meet the suspect, the defendant within forty-eight hours.One   

Conditional place, defense lawyer can through the established network, telephone booking platform, an appointment to meet with time.One   

     The detention house shall not take counsel did not inform the authorities refused to lawyers.

The lawyer made convict guardian, no correlation between close relatives or in the case of unit colleague or friend entrusted to appeal, the right to meet with a convict, procedure and content according to the former three executive.

Article thirteenth [three cases met the licensing procedure] requirements met with the crime of endangering national security, terrorist crimes, particularly great bribery crime suspects in custody defense counsel in the investigation period, a written application shall be submitted to the case handling organ. The case handling organ shall make a decision on whether to permit within forty-eight hours after receiving the application. The permit shall be issued with the approval documents, to counsel, by holding the documents to the detention center for meeting; do not permit the meeting shall be the reason to the lawyer, written instructions.One    The case handling organ without permission defense lawyers met after the disappearance of the circumstances, shall promptly inform the defense lawyer may arrange the meeting.One   

But, no matter do not permit the lawyer meets the situation are disappearing, the case handling organ shall guarantee the defense lawyers in the investigation stage, the prosecution stage, each stage of at least a meeting, and ensure the trial lawyer full right and marking the right, otherwise the judicial organs shall not hearing.

Article fourteenth [translators attended the meeting program] defense lawyers met the suspect, the defendant in custody of the need to hire an interpreter, shall apply in the meeting three days prior to the proposed, and submit the identity certificate and the unit that translators. The case handling organ shall timely examine whether to permit decision. License translators attended the meeting, shall issue the permit decision documents to counsel; not to permit, shall be the reason to the defense lawyer written instructions.OneDetention by the case handling organ approval documents and the translator identity arrange translators attended the meeting.One

 However, defence lawyers submitted to different translators employ translators "apply" two times, the case handling organ is still not permitted, the case handling organ must be in3Days for defense lawyers hired translators, otherwise, defense lawyers have the right to remain firm hired translators "decision" directly to meet with the criminal suspect, defendant, the detention house shall arrange for an interview. 

Article fifteenth [individually or jointly met] of criminal suspects and defendants, entrust two lawyers as a defender, the defense lawyer may independently or jointly with the suspect, the defendant.One 

Sixteenth meeting places] [lawyer met the suspect, the defendant in custody should be in detention center. The detention house shall set up a lawyer interview room and provide appropriate working conditions in accordance with the provisions of.

Article seventeenth [security] meetingDefense lawyers met with the suspect in custody, the defendant is not affected by the number of times and the time limit, holidays, weekends should be arranged to have the lawyers met with, but should be in the8Within hours of working time.

Article eighteenth [meeting records and recording] lawyer meets with the criminal suspect in custody, the defendant,SureMake meeting records, and criminal suspects One, the defendant confirm and sign on the record.

    Defense lawyers met the suspect, the defendant in custody, with the consent of the suspect, the defendant, can record, video, pictures of the meeting.

    Defense lawyer meets with the criminal suspect in custody, the defendant produced transcripts and recordings, videos, photos, can not reveal to the accomplice or not co processing but the implementation crime related criminal suspects, defendants, witnesses and suspects, the relatives of the accused.

    Article nineteenth [meeting] without monitoring defense lawyers met the suspect, the defendant without listening, organs and the case are not allowed to present.

   In order to ensure personnel and prison security, detention may take appropriate measures necessary to lawyer met with monitoring the situation, but not with Limited was informed that the conversation.

    Article twentieth [meeting] lawyer content to meet with the criminal suspect, defendant, may engage in the following activities:

    (A)To suspect, the defendant informed case;

    (Two)The suspect, the defendant to provide legal assistance and legal advice;

    (Three)Since the case is transferred for examination before the date, the relevant evidence to the crime suspect, accused person verification;

    (Four)Since the case is transferred for examination before prosecution date, exchanging views on defense, examination and the criminal suspect, the defendant;

(Five)Other activities not prohibited by law, judicial interpretation.

    Article twenty-first [meeting] provisions prohibiting lawyer meets with the criminal suspect in custody, the defendant, shall comply with the provisions of relevant laws, administrative regulations and rules, shall have the following acts:

     (A)The mobile phone and other communication devices provide to the criminal suspect, defendant;

(Two)Lead the criminal suspects and defendants, relatives, friends or other staff to participate in the meeting;

Delete the original article (paragraph three)

     (Three)For criminal suspects, defendants transfer the transfer prohibited items,

    (Four)Other violations of laws, administrative rules and regulations prohibited.

    Defense lawyer meets with the criminal suspect in custody, the defendant, should abide by the detention center regulations, shall not hinder the order management behavior.

Defense lawyers are one of the first act, the staff should be stopped; to listen to discourage, can be terminated when the meeting, and to inform their law firms or the judicial administrative organ, the lawyers' association.

Article twenty-second [communication]The defense lawyer may with the criminal suspect in custody, the defendant communication, detention may inspect the letters, but the communication content of the defense lawyers and the suspect, the defendant must be kept confidential, and shall not be used as evidence.

Article twenty-third [under residential surveillance and communication meeting] lawyer with the criminal suspects, defendants met and communication, according to the relevant provisions of this chapter.

     Four, marking

      Article twenty-fourth [range], marking the way lawyers of the people's Procuratorate date, consult, extract, copy the file material.

    The materials include the litigation documents and evidence. The second case, the retrial case and death penalty cases, the materials include have judicial case file material end.

Copy copy, including pictures, scanning, electronic document copy etc..

Article twenty-fifth [notice] marking the case is transferred for examination before prosecution or prosecution, the people's Procuratorate, the people's court shall within three days inform against or bring a case to the case of public prosecution lawyers play materials, after receiving the examination, in order to lawyers.

Article twenty-sixth [scoring] lawyer program by a lawyer's practice certificate, certificate of his law firm and a power of attorney or legal aid letters to the people's Procuratorate, the people's court to consult, extract, copy the relevant documents. The people's Procuratorate, the people's court shall promptly arrange, and provide the place and relevant equipment, guarantee the lawyers have plenty of reading time. Due to the people's Procuratorate, the people's court marking and other reasons can not be timely arrangement, it shall explain the reasons to the lawyer, and stipulate specific marking date.

Article twenty-seventh [archives] the confidentiality obligationBefore the court of public quality certificateDefense lawyers shall be in accordance with the law on the circumstances of the case review about confidential, to extract, copy the materials for safekeeping, shall not be used for purposes other than in the case of defense.

    Five, investigation and evidence collection

    Article twenty-eighth [counsel submitted in connection with the case materials] defenders entrusted, can material collection and case. Defense lawyers to collect the suspect, the defendant is not in the related materials the scene of the crime, does not reach the age of criminal responsibility, mental patients belongs to not bear criminal responsibility according to law,Should in the acquisition of materials or get clues from the date of3Days will copy or "clues" to submit the case handling organ.Defense lawyers collection has important significance on sentencing materials, may also submit the case handling organ.

Defense lawyers filed with the relevant case materials, the authorities handling the case should be received in time and the place, to counsel submit materials to, The source of the material and the main contents of the relevant conditions and documented, and related materials shall be attached, and issue a receipt.

   

    Article twenty-ninth [application]. Did not submit evidence in the prosecution, the trial, defense attorneys thought in the investigation, prosecution period handling organs collected prove the criminal suspect, the defendant not guilty evidence not submitted, Apply to a people's Procuratorate, the people's court to obtain, it shall submit a written application and provide relevant clues or materials.

    The people's Procuratorate, the people's court after examination, that there may be evidence not submitted, shall within three days in the case handling organ within. Public security organs, people's Procuratorate submit relevant evidence, the people's Procuratorate, the people's court shall within three days inform the lawyer consult, extract, replication.

The people's Procuratorate, the people's court review decided not to take, should the reason to the defense lawyer written instructions.

    If there is evidence, lawyers for the evidences obtained objective existence, and had a great influence on the case of conviction and sentencing, and the public security organs, people's Procuratorate, the people's court fails to collect or deliberately conceal, destroy evidence, criminal responsibility shall be investigated in accordance with the relevant personnel.

   Article thirtieth [investigation] to the evidence provided to the victim's lawyer for victims or their close relatives, the collection of materials related to the case, it shall submit a written application to the people's Procuratorate, the people's court, and explain the reasons for application, specify the need to adopt, collection of evidence or need to survey questions. The people's Procuratorate, the people's court shall, after receipt of the application within seven days whether to permit decision, and notify the attorney. No license, a written explanation shall be given.

    If there is evidence, lawyers for the evidences obtained objective existence, and had a great influence on the case of conviction and sentencing, and the people's Procuratorate, the people's court officials and the victim, witness close relatives provide collude and decided not to permit, shall be prosecuted for criminal responsibility in accordance with the law related personnel

    Article thirty-first [apply to the people's Procuratorate, the people's court investigation evidence collection] lawyer witness, not to obtain the units and individuals collected evidence or witnesses,,, the relevant units and individuals do not agree with the defense lawyers to collect, obtain evidence, the defense lawyer may apply to the people's Procuratorate, writing the people's court for the collection and obtaining of evidence, and explain the the reason for the application, state the need to collect evidence obtaining, content or need to investigate an outline.

    The people's Procuratorate, the people's court shall, after receipt of the application within five days of the decision to agree, and notify the attorney. Not approved, a written explanation shall be given.

The people's Procuratorate, the people's court according to the provisions of the preceding paragraph shall collect, obtain evidence, according to need can inform the defence lawyer. Collect, collect evidence, it shall timely notify the attorney replication.

    If there is evidence, lawyers for the evidences obtained objective existence, and had a great influence on the case of conviction and sentencing, and the relevant personnel of the people's Procuratorate, the people's court shall not agree to miscarriage, criminal responsibility shall be investigated in accordance with the relevant personnel.

    Article thirty-second [to imprisonment or detainees] defense lawyer investigation to lawyers and law firms practicing certificate to prove, to being imprisoned prisoners of investigation and evidence collection, prisons and other regulatory authorities shall provide appropriate places and the necessary facilities.

Defense counsel to the criminal suspect in custody, the defendant shall be subject to investigation and collection of evidence, the case handling organ license handling the suspect, the defendant case.

     Six, defense activities

Article thirty-third [the authorities] to take the obligation to inform, change, cancellation of the compulsory measures, examination and approval of the arrest, extended or re calculated time period of investigation, to withdraw the case, transferred for examination and prosecution, prosecution, trial, sentencing hearing is postponed, termination, shall be submitted to the death penalty review and attachment, seizure, freezing of property and other major program decision,Should be in7Informed counsel.

    Article thirty-fourth [opinion] listen to the defense lawyer investigation authorities in the investigation before the end, the people's Procuratorate, the people's court in the review and approval, decided to arrest, the Supreme People's court during the period of review of death penalty cases, lawyers request, the case handling organ shall listen to the opinions of the defender. The people's Procuratorate for examination and prosecution, the people's Court of second instance decided not to open a court session, it shall fully listen to the counsel's opinion.

Defense counsel to reflect the views or to submit the evidence, the case handling organ shall receive during work time and office space, and making a record attached. The written opinions of defence counsel, shall be attached.

Article thirty-fifth [understanding] cases about lawyer entrusted by criminal suspect, defendant, to the understanding of criminal suspects, The main fact defendants suspected or accused of the crime and was master of the suspect, the defendant, was taken, change, cancellation of the compulsory measures of the situation, and the investigation organ to extend the investigation detain deadline etc..

    Article thirty-sixth [application for alteration, cancellation of the compulsory measures] defense lawyers can be written application to the authority to change or cancellation of the compulsory measures.

    The authority should be in receipt of the application within three days after the decision is made. Defense lawyer's application in accordance with the law, the case handling organ shall timely modify or terminate the compulsory measures; the examination that should not modify or terminate the compulsory measures, shall inform the lawyer, and explain the reasons in written form.

    Article thirty-seventh [for] the exclusion of illegal evidence in defense lawyers in the investigation stage, the prosecution stage, the trial stage, the death penalty review stage found evidence relevant to the case in any of the following circumstances, may apply to the case handling organ for the exclusion of illegal evidence:

     (A)The evidence is collected by illegal methods;

     (Two)Collect evidence does not meet the statutory procedures, may seriously affect judicial justice.

   The lawyer found illegal evidence before the court, can be put in before the court.

   A lawyer for the exclusion of illegal evidence, should provide clues of illegal evidence gathering personnel, time, place, method, contents or materials.

A lawyer for the exclusion of illegal evidence, the case handling organ shall listen to the opinions of counsel, examine and verify evidence according to the legal procedures,And in deciding whether or not to exclude the decision in accordance with the law, in order to enter the next procedure.

    Article thirty-eighth [trial] lawyer on the basis of the convenience of hearing notice, a lawyer's practicing certificate into the people's court for trial.

The people's court shall provide the necessary conditions for carrying out defense lawyer in court,And from a security check.

    Article thirty-ninth [application] right before the trial lawyer can advise summoned before the court session, or proposed to change the jurisdiction, avoidance, supplementary identification or for re authentication at court. The people's court shall review the defense lawyer's application, make a decision without delay, and inform the lawyer.

Defence lawyers have emergency session conflict, disease, traffic delays justifiable reasons for the postponement of the hearing, the people's court shall permit.

    Article fortieth [right] in the trial. During the trial, the defense lawyer may legally apply matters, the material in the burden of proof, evidence stage; The presiding judge shall arrange and fully guarantee the defense lawyers to question the accused, witnesses, appraisers,On the evidence and the case, and the public prosecutor comment and debate. The court for the prosecution and defense lawyers The materials and opinions shall be impartial treatment.

During the trial, defense lawyer for the defendant in court remove entrust relationship or to refuse to plead for the accused, out of the court, shall be submitted to the court a show of hands, showing

Forty-first defense lawyers and defendants [AC] in the trial process, with the permission of the court,The defense lawyer may separate exchange and the defendant

Forty-second [] in addition to court records may be leaking state secrets, commercial secrets and personal privacy,(delete the permission of the court)Defense lawyers are entitled to trial recording, video or read, copy the trial court recording, video recording.

     Defense lawyers in the trial process, video recordings shall be used to endanger national security activities; not on the hearing of the case, the video recording of the confidentiality obligations, not to any other unrelated to the third people who leaked.

Seven, the appeal and accusation and legal liability

    Article forty-third [against] one of the appeal, the people's Procuratorate, public security organ People's court and its staff have the following hinder the defense lawyer to exercise their litigation rights behavior,The defense lawyer may complain to the public security organs at the same level or at a higher level, the people's court at the same level or the people's Procuratorate at a higher level, the higher the complaint,, may also be charged to the same level or higher people's Congress and its Standing Committee, political consultative Conference and other departments, organizations, have the right to appeal:

    (A)It shall inform the lawyer did not inform according to law;

    (Two)Proposed according to the defense lawyer's application, not to receive, reply;

    (Three)Shall be licensed lawyer application without license in accordance with law;

    (Four)Shall listen to the opinions of the defense lawyers did not listen to the law;

    (Five)Other obstacles to counsel to exercise their litigation rights in accordance with the law.

    Article forty-fourth the appeal and accusation [review]Defense lawyers on the same level or the public security organ at a higher level, the people's Procuratorate or the people's court at a higher level appeal, complaint, it shall submit a written material, receive written materials shall be in10Days of written reply lawyer, receiving the written material organ believes that the defense lawyer complaint, accusation is the case, the case handling organ shall be ordered to correct.

   Defense lawyer for processing received the written material organ refuses to accept the decision, may apply to the admissibility of the complaint, accusing the superior organ complaint, accusation.

  Receiving the written material at the same level or the public security organ at a higher level, the people's Procuratorate or the people's court at a higher level of defence lawyers appeal, accuse neither accept, also do not according to the provisions of reply processing, the defense lawyer may bring an administrative lawsuit on the same level or the public security organ at the same level or at a higher level, may apply to the people's Congress and its Standing Committee of the people's the procuratorate, the people's court for the recall motion.

 

   Article forty-fifth [lawyer] reflect the defense lawyers that the public security organs, people's Procuratorate, the people's court and its personnel impede their exercise their litigation rights according to law, administrative organs, judicial to can the case handling organ is located or the local law firm lawyers associations reflect. The judicial administrative organs, lawyers association upon examination that is the case, can suggest the investigation and verification to the relevant case handling organ.

    Article forty-sixth [prohibition and obligation of confidentiality] defense lawyers involved in criminal activities, shall abide by the discipline of the court and the relevant provisions, without any obstruction, interference action of normal behavior.

    And information about the lawyer client known in practice, have the right to keep confidential. However, defense lawyers in the practice activities, aware of the client or other people, or are being implemented to endanger national security, public safety and serious endanger the personal safety of the crime, the judicial organ shall timely inform the.

   Article forty-seventh [illegal] the case handling organ treatment found defense lawyers have illegal acts, it shall timely notify the attorney law firm where the judicial administrative organ or the bar association. The judicial administrative organ or the lawyers association shall file a defence lawyer, the survey found there are illegal acts, shall be in accordance with the relevant laws, regulations, rules and standards, Given administrative punishment or penalty to the lawyer, and the results will inform the authorities handling the case writing.

Defense lawyers act constitutes a crime, shall be investigated for criminal responsibility according to law.

  The survey found the lawyer did not illegal behavior, to inform the authorities handling the case writing.

In making the investigation conclusion, lawyers shall not stop the defense work, and shall not prejudice the lawyer handling organs exercise their litigation rights.

Article forty-eighth the people's Procuratorate investigation [] lawyer suspected of a crime, the public security organs found lawyer suspected of a crime, or accept the report, complaint, report, the relevant organs of the transfer, in accordance with the jurisdiction of Criminal Investigation Division for review that meet the conditions, shall be undertaken for the defense case investigation organ at the next higher level of investigation designated by the other investigation organ for investigation, or from the level of the investigation organ for investigation. The investigation organ shall not be designated to handle the junior defenders case undertaking the investigation organ for investigation.

    Lawyers for the alleged crime investigation department, must be outside the law case investigation organ of prefecture level city investigation organ.

 

Eight, other

    Article forty-ninth [staff]According to the defense, the defense lawyer or law firm authorized, other lawyers or assistant personnel have the right to engage in generation for auxiliary work, to receive legal documents, as the court clerk, the cases about defense, the case handling organ shall provide convenience for the corresponding.

    Participated in the defense of auxiliary personnel shall abide by the relevant laws, regulations, rules and the requirements of lawyer.

    The fiftieth [] the provisions of the case handling organ"The case handling organ"In this case, is responsible for the investigation, the public security organs, the prosecution and trial work of the people's Procuratorate and the people's court.

    Article fifty-first [] in addition to legal aid laws and regulations provide otherwise, the provisions of lawyer criminal legal aid cases of defense activities.

Article fifty-second effective date] [the regulations shall come into force upon promulgation. The inconsistent with the provisions issued prior to the date of the Supreme People's court, the Supreme People's Procuratorate, the Ministry of public security, the Ministry of Justice jointly issued with these Provisions, these Provisions shall prevail.

       Yunnan Hua Heng Law FirmCeng Weichang

                                       July 12, 2013