Liu Guiming ":

   In Chengdu held "democracy and legal tour forum", the national director of peruse criminal Business Committee Tian Wenchang told the lawyer, a full discussion and consultation, the National Lawyers Association published "lawyers" to meet the standard, business activities, scientific and standardized the lawyers. Therefore, asked Tian Wenchang director of the National Lawyers Association punishment committee secretary general Han Jiayi lawyers will be relevant information to me.

  So, there is this appearance standard lawyers before you, with 30000 words "". Can say, this is a worthy of our lawyers learn seriously, actively carry out, flexible use of the "twenty-four rules".

 

 

Dear director, committee members: hello!

    How to suspect, the defendant met criminal defense lawyer, there is still debate and concern. The second half of last year, the Business Committee of the National Lawyers Association started to study this problem, on the one hand, to form a unified understanding through extensive research, in order to standardize the criminal defense lawyer behavior; on the other hand, we also hope that the research can provide reference for the legislative.

To this end, in October last year, punishment committee dedicated to each director, committee sent mail, solicitation criminal defense lawyer during the meeting problems (including: Zhang Jinlong, Ye Xinglin, Xu Xiaoping, Shen Xingzheng, Shang Lunsheng and other lawyers put forward their own proposals); thereafter, punishment committee also specially invited members in Beijing so, scholars established the writing on the presentation of the drafting group, repeatedly (including seminar lawyers including: Shi Hongying, Ma Minghui, Wan Qiang, Yang Kuangsheng, Duan Jianguo, Deng Jianguo, Li Xincheng, Xu Lan, Zhang Yansheng, Qian Lieyang Pavilion, Jiao Peng etc.); at the beginning of this year, and will have been modified to the Fifth Draft of the meeting specification issued to all members, widely solicit comments (including: Ma Minghui, Wang Shaopeng, Luo Liyan, Zhai Jian, Zhang Peihong, Yu Xiangdong, Wan Daqiang, Luo Yi, Xu Xiaoping, Liu Yang, Duan Jian Guo, Sun Ruixi, Liu Wenyuan, Xu Lanting, Shao Hu Luan, Zhang Shuguo, Li Chunguang, Shang Lunsheng, about eighteen lawyers put forward written opinions). Punishment committee director Hou Fengmei, director Tang Zhongzan has to go to Beijing to participate in discussion and report, submit a written amendment, by summarizing all the amendments, eventually forming "lawyers" sixth draft specification.

At present, the document has been in the name of the all China Lawyers Association, the official legislative proposals to the legislature, judicial organs. Hope that the lawyers advice can cause sufficient attention!

Are hereby notified.

 

 

 

 

                                                    Han Jiayi

                                          2011Years6Month29DayWednesday

 

 

The lawyer to meet specification sixth draft (Interpretation and demonstration version)

 

 

The first [and] the duty lawyer

The suspect, the defendant in custody, arrested is entitled to apply for duty counsel and meeting. Should immediately inform the duty lawyer handling organs received the application of criminal suspects and defendants, post, duty lawyer shall meet.

 

[the problem]

1The suspect, the defendant was commissioned a lawyer or appoint a lawyer to help former, the most prone to extended detention, torture to extract confessions and other procedural illegal activities, how to protect their legal rights?

2The case handling organ, detention authority such as almost to perform notification and the duty of disclosure, will lead to the crime suspect, the accused person know himself in the stage of the proceedings and litigation rights.

 

[] the relevant legislation

The duty lawyer system originated in the United kingdom,Has now become an integral part of the legal aid system in many countries and regions. Such as the UK and China District of Hongkong police on duty lawyer system, the Canadian criminal and civil legal aid duty counsel system etc. .

2006At the beginning of the year, UNDP and the Ministry of Commerce, the Department of justice, in Henan County, established the legal aid duty counsel system pilot project. Legal aid in China duty counsel system is funded by the government, the legal aid institutions lawyers assigned to duty in the public security organ or the people's court and other departments, free of charge for the instant provide legal advice, guidance, or as the accused agents, help the accused to apply for postponement of the hearing or other legal affairs.

 

Explanation and demonstration []

1. the necessity of setting up the duty lawyer system.The duty lawyer system is composed of a practicing lawyer take turns on duty free for has been forced to take measures have not yet received the suspect, the defendant to provide legal aid counsel help system. Objective to set up the duty lawyer system has two: first, the legal services can provide timely for low-income people, professional, low cost and high efficiency, high quality. Second, is conducive to the protection of interrogating suspects the presence right of lawyer. As the socialist market economic system continuously improve and perfect, the protection of human rights has been paid more and more attention. The interrogation of criminal suspects the right to the presence of counsel of the world as the prevailing rules, in terms of litigation system, this system not only can reflect the law, with full respect for the human rights of the criminal suspect and protection, mitigation suspects in a weak position, also strengthen legal supervision, reduce judicial corruption and illegal collection of evidence, to prevent the alienation of investigation power of interrogation, and improve the quality of case handling the investigation organs and the level of law enforcement.

2．The establishment of our duty counsel system.Our country2006Years in Henan were on duty lawyer system of the pilot, the justice department after investigation thinks: the system in the protection of human rights and has an important role to promote judicial justice. From the aspects of,At present, Henan Province under the duty lawyer system file is "legal aid duty lawyer office procedures". The document, the legal aid duty room shall be located in a court or public security organs office near the door or the tribunal, shall be provided with clear signs; office provided by public security organs and the court, to have local firms list for the consulting. The duty lawyer working content is: to provide free legal advice; to assist the parties to apply for legal aid; legal documents; if necessary, the duty lawyer can issue a written proposal "lawyer", to the court or the public security organ.

Considering our country economy, social development level is different, in particular the duty lawyer system should be set up, by the provincial administrative department of justice and the bar association in combination with the local actual situation, the reference pilot, and gradually explore, step by step implementation. Has the condition to establish, no conditions on the establishment, to be ripe to be set.

 

Article second [establish a relationship]

The suspect, the defendant may entrust lawyers. The suspect, the defendant's legal representative, relatives or criminal suspects, defendants specified person can provide entrusted lawyer.

The entrusted lawyer to places of detention or surveillance of residence to meet the criminal suspect, the defendant. During the meeting, the suspect, the defendant agreed to set up a principal-agent relationship, sign the power of attorney to confirm; not agreed to set up a principal-agent relationship, can refuse to sign, to terminate the meeting.

 

[To solve the problem]

1At current law, to hire a lawyer too narrow range of subject.

2Different family commissioned lawyers requested a meeting, is often the case handling organ that principal-agent relationship is invalid and not allowed to meet with, or to have arranged a meeting is to hire a lawyer, after meeting the application will not be arranged.

 

[] the relevant legislation

The United Nations "basic principles on the role of lawyers" that this attitude, No.1Stipulates: "everyone has the right to request by a lawyer of their choice to defend". "International Convention on Civil and political rights article"14The American Convention on human rights "," the8Also have a similar expression, showed that the final confirmation of principal-agent relationship right into the criminal suspect, the defendant.

Confirmation about the principal-agent relationship, the Ministry of public security1996Years12Month20Released the "Regulations" of lawyers in the investigation stage in criminal lawsuit activity article27Article: "the lawyer meets with the criminal suspect in custody, should consult the agree to hire the lawyer. If agreed to keep it in the lawyer's "power of attorney" on the signature confirmation; such as disagreed, should be documented and let the signature confirmation."

 

Explanation and demonstration []

1To hire a lawyer. Expand the scope of subject to.The current law only stipulates the crime suspect, accused person's relatives have to hire a lawyer the right, but if the suspect, the defendant has no relatives or relatives because of not to notify the case, criminal suspects, defendants the right to counsel will suffer. In recent years, as more and more migrant workers from rural areas, the problem to be highlighted. If migrant workers were detained on suspicion of criminal cases, relatives and not at nearby, how to realize the right to an attorney? In order to ensure that a particular group of the litigation rights, this article will be hired lawyers subject range by relatives extended to relatives and the designated person, which is more conducive to the protection of criminal suspects, defendants rights.

2Build relationships. Trust relationship with the meeting.In practice, most of the suspects, the accused in custody, are by their relatives as a lawyer. After the lawyer entrusted with the suspect, the defendant was the first meeting has two purposes: first, to confirm the principal-agent relationship; secondly, the maintenance of criminal suspects, the accused person's legitimate rights and interests. Confirm the trust relationship is a prerequisite for safeguarding the legitimate rights and interests of the criminal suspect, the defendant. The first meeting, the suspect, the defendant has the right to a lawyer to communicate through selection. Because the development of criminal suspects, defendants and lawyers good trust relationship is helpful to the follow-up program defense activities.

 

Article third [the meeting] notice obligation

The suspect, the defendant in custody, arrested24Within hours, the case handling organ to inform the family of custody, shall notify the family members have the right to appoint counsel.

The suspects, defendants have clear the delegate object detention institution shall, in24The request of criminal suspects and defendants, appointed lawyer or law firm where the hours.

The suspect, the defendant eligible for legal aid, the case handling organ shall inform the legal aid institutions designated for the suspect, the defendant lawyer.

In any case handling organ, custody institution shall not be any reason to obstruct the defense lawyers.

 

[the problem]

1At present the law has not stipulated the handling organs will be right to an attorney told the family obligations, which makes relatives because of not the right to know and not in time for the suspect, the defendant lawyer.

2According to the current system, the suspects, defendants are clear to hire a lawyer's request, the detention institution shall timely notification to the designated lawyer or law firm, but "time notice" specific but without specific requirements, leading to the practice of random delay phenomena.

3The legal aid system of our country is limited to the trial stage, the stage of investigation, the suspect, the defendant cannot afford to hire a lawyer, the lawyer's right is difficult to realize.

 

[] the relevant legislation

The United Nations "basic principles on the role of lawyers" article5Article: "the competent authority government told by his lawyers entrusted all detained and arrested or charged with criminal offences rights". The United Nations "protect all under any form of detention or imprisonment of the principle of" article17Article: "the competent authorities should be in the detainees arrested 'timely inform the legal aid' access rights."

Britain.Police and criminal evidence rules "article3Article: "the arrest and detention of the people at the police station, custody officer must inform him to have the right at any time and free private consulting an independent counsel, and asked him to autograph detention report to indicate whether he needs legal help at this stage"."Police and criminal evidence law "article58(5) stipulates: "once in custody has been detained36Hours, must be allowed to meet with a lawyer.""Code of criminal procedure" in France116Stipulates the obligation to inform the judge, and made clear to address problems. "Criminal Procedure Law" in Italy96Also have similar provisions.

The Ministry of public security of our formulation of the "public security organ for criminal case procedure regulations" article36Article: "the public security organs to take coercive measures in the first interrogation of suspects in accordance with the law or the date, it shall inform the criminal suspect has the right to hire a lawyer to provide legal advice, complaints, charges, and record". Article39Article: "the criminal suspect in custody is proposed to hire a lawyer, a detention house shall timely the request for investigation organs, the investigation organ shall timely send the request to the authorized personnel or local law firm. The suspect is proposed to hire a lawyer, but no specific mention of the object, the investigation organ shall timely notify the local lawyers association or the judicial administrative organ to recommend a lawyer."

Sichuan Province "lawyer met the related problems of criminal suspects in custody regulations" article11Article: "the investigation organ shall inform the suspect in custody in the first interrogation by the investigatory organ or coercive measures taken to date have hired a lawyer to provide legal advice, the agent to apply for bail appeal and accusation, rights, and recorded in the volume."

Lawyer met the problems related to the suspect in custody accused Beijing "Regulations" article25The Beijing Lawyers Association, "the Beijing city law firms should be placed in the list of pre department and guards, the suspect has hired lawyers requirements, can be a lawyer law firm where the request to convey by the case handling organ."

 

Explanation and demonstration []

1Clearly the case handling organ. This obligation does not increase the burden of work.In the practice of criminal suspects and defendants, relatives tend to lack of legal knowledge, through the different stages of the litigation rights also did not know, so the authority has the obligation to inform. In addition, according to the current law, the case handling organ at24Hours to inform their families of custody obligations. At the same time notice of detention place told took the right to an attorney, and no additional burden on the case handling organ.

2Custody. Clear institutional obligations has two purposes:On the one hand, is conducive to the protection of the crime suspect, accused person's legitimate rights and interests; secondly, help to be held accountable in the custody organ violates the obligations.

3At suitable stage expansion of legal aid to make sufficient defense readiness.China's legal aid system is limited to the trial stage. From the exercise of the right of defense effect, effective defense counsel can not be before the court effective defense. The specified extended stage of legal aid can more effectively protect the legitimate rights and interests of criminal suspects, defendants in the trial of former stage. Moreover, expand the social vulnerable groups rights, also contribute to social harmony.

 

Article fourth      The suspect, the defendant [meeting] requirements

The suspect in custody, the defendant requested a meeting of commission or the assignment of defence counsel, custody mechanism should be in24Hours notice defense lawyers. Defense attorneys received notice shall be timely met.

 

[the problem]

China's law does not provide for criminal suspects, defendants and lawyers have the right. In the practice of criminal suspects and defendants, put forward to meet with a lawyer asked repeatedly refused.

 

[] the relevant legislation

The relevant international conventions are greatly different, but are clearly the criminal suspects, defendants and lawyers met the right. "The basic principles on the role of lawyers in"8Stipulates, "the arrest and detention or imprisonment persons shall be provided with adequate opportunities, time and facilities to accept lawyer visit and contact a lawyer consultation". In addition, "International Covenant on Civil and political rights article"14Article3Paragraph, "protect all under any form of detention or imprisonment of the principle of" article18The American Convention on human rights "," the8Article2Paragraph has similar provisions.

"Criminal Procedure Law" in Italy104Provisions, "in the prevention of defendants in detention state has the right to meet with counsel from the measures of execution, the people are arrested or detained persons have the right to arrest or detention immediately after the meeting with counsel."

"Criminal Procedure Law" in Japan39Article, the suspect in custody in other people without the presence of counsel, and met with acceptance documents or articles.

"Penal code" Russia article47Article4Paragraph, "German Code of criminal procedure," article137Article1Paragraph, article148Article1Paragraph, the British "police and criminal evidence law" article58And the "rules" article6Also have similar provisions.

 

Explanation and demonstration []

The provisions of this article aims at a clear right is not only the lawyers' rights, but also should be suspect, defendant rights in litigation.

1. right belongs to the crime suspect, accused person's right, is the extension of the right to defense.Defense lawyers have the right of Defense Based on the identity, the lawyer only accept the entrustment or appointed defense lawyers to become legitimate to intervene in the proceedings. Does not specify the authority or authorities, the rights of defense counsel would be impossible, therefore, right of defense lawyer attached to the criminal suspect, the defendant's right to defense, is the extension of right of defense.

2. right and criminal suspects, defendants interests more closely.The lawyer to meet the criminal suspects and defendants, the purpose is to help the criminal suspect, defendant full defense, which is beneficial to the better exercise their right of defense. Effective defence including the substantive and procedural defense defense. Through the meeting, understanding of criminal suspects and defendants, and the charges for the substantive defense preparations. In the investigation stage "the appeal and accusation", is actually fight against misconduct investigation organs, provide the basis for the procedural defense. If the meeting is blocked, the lawyer, simply means to carry out the work of affected; and for the suspect and defendant, it means the procedural defense right is a fundamental weakening.

3The suspect, the defendant has more information advantage.The defense lawyer to legal knowledge for the suspect, the defendant to provide legal services, and criminal suspects, defendants in the case information is more dominant, but also more initiative. Based on the consideration of their own interests, the criminal suspect, the defendant may provide new clues for counsel, new ideas and new evidence, which is conducive to the timely adjustment of the defense lawyer thought, and criminal suspects and defendants, form the defense force, avoid because of insufficient communication caused by the differences of opinion within the. Differences of opinion in court, defense lawyers and the suspect, the defendant will also increase the workload of the court investigation resulted in the defensive ability of digestion at the same time, affect the efficiency of the litigation.

4Give the criminal suspects and defendants, the right to apply for a meeting to remedy.No relief, no right. Criminal legislation and practice of the general will meet right as defense lawyers' rights, although this viewpoint is convenient for lawyers to work, but it is often very limited remedy. Under the existing law, lawyers are violated only complaints in the rights, relief effect. And will see right setting for criminal suspects, defendants rights, infringement of right of action can be seen as a violation of the right of defense of the defense lawyer may, by the procedural defense will appeal to the court, the court through the procedural judgment system of relief, and thus more conducive to the protection of the rights.

5. right as a criminal suspect, the defendant's litigation rights, countries have the obligation to protect. At the same time, the attorney for the defense, it shall perform the contract obligations based on meeting.

 

Article fifth  [The number of lawyers]

The defense lawyer may alone to meet the suspects, defendants, can also with other lawyer, practice law common to meet the suspects, the accused.

Two defense lawyers met together, one of them must be authorized or appointed defense attorney.

Defense lawyers in different places to meet the suspects, defendants, a lawyer can join with the local law firm or trainee lawyer jointly met.

 

[To solve the problem]

One, the current criminal procedure law on lawyers not involved in number, causing chaos in practice.

Two, in the judicial practice, around lawyers shall not a number of problems, which brings great inconvenience to defense lawyers.

 

[The relevant legislation]

A number of lawyers, foreign legislation rarely involved, regulations and the relevant domestic provinces, has also not consistent. From the present Provisions, mainly divided into the following two categories:

The first asked to participate in the meeting is only accept the Commission's lawyer, if the lawyer commissioned two defense lawyers, commissioned lawyer can be individually or jointly met the suspect, the defendant.For example, the Beijing high court, procuratorate, Municipal Judicial Bureau, the Municipal Public Security Bureau, the city of the NSA "lawyer met the provisions of relevant issues in custody of criminal suspects and defendants, (for Trial Implementation)" (2008Years) article9Provisions, "entrusted lawyers can independently or jointly meet the suspects, the accused". Sichuan Provincial Procuratorate, the Provincial Public Security Bureau, the Provincial Justice Department "lawyer met the provisions of a criminal suspect in custody (Trial)" article4Also have similar provisions.

The second class is defined, the lawyers met with the suspect, the defendant, must be attended by two people.For example, the Jiangsu Provincial People's Procuratorate, the Department of justice "lawyer met the problems of suspects in custody regulations" (2010Years) article5A lawyer, "to meet the suspects, there should be two people present, including one commissioned lawyer, another person can be the lawyer, lawyer or lawyer assistant intern. The lawyer specifically to meet the suspects, another person can be approved by the local people's procuratorates other lawyers agreed. The people's Procuratorate to present, the lawyer can meet". Jiangsu provincial public security department, the Department of justice of Jiangsu Province, the Jiangsu Provincial People's Procuratorate "about lawyers and other defenders in meeting notice" on the suspect article4A, Shaanxi Provincial Department of justice "counsel on the litigation with criminal Interim Provisions" of article3Also made similar provisions.

 

[Explanation and demonstration]

Regulations, present a number of lawyers involved in the problems throughout the meeting, obvious drawbacks.The first class, only allows the commissioned lawyer met the suspect, the defendant, mainly in order to prevent lawyer carrying case had nothing to do with staff to participate in the meeting, to prevent the case had nothing to do with staff to implement some prohibited by law in the meeting with the criminal suspect is. However, such provisions may also be brought great inconvenience to the defense lawyers. For example, in some serious cases, lawyers often need an assistant in a meeting with the suspect (can be a lawyer or a trainee solicitor), assist in the preparation of meetings, make meeting records. If you will not let those who did not receive the lawyer or practice law in the meeting, meeting effect may influence the defense attorney. Second, defense lawyers to meet with the criminal suspect, the defendant must have two people, mainly in order to prevent criminal suspects to escape, to prevent the implementation of the defense lawyer violating the provisions of the act, but also to protect the lawyers' personal safety, to prevent the risk in practice. However, great inconvenience this provision would give defense lawyer work, resulting in a waste of resources and lawyer, may also increase the cost of litigation, aggravate the economic burden of the parties.

Two, a meeting with the lawyer, or with another lawyer or lawyers involved in the meeting with the practice, there are positive significance of their.In a meeting with the positive significance of counsel: first, if the criminal suspect economic distress, a meeting with the lawyer may reduce the crime suspect and the family litigation costs; second, in the off-site meeting, a meeting with the lawyer, not only convenient, flexible, but also can save litigation costs. But defense lawyers and another lawyer or lawyers participate together with practice, also has certain positive significance: first, a defense lawyer in a meeting, often need an assistant (often non commissioned a lawyer or intern) for the meeting records; second, two lawyers met together, mutual supervision meeting personnel, prevent some violate the relevant laws, rules of behavior; third, the judicial practice in our country, the judicial authorities tend to counsel during the meeting abetting crime suspects "confession" or "be torture to extract confessions" of criminal prosecution against the defense lawyer, if the lawyer and another lawyer or lawyer with practice in the meeting, two lawyers can testify, but also a kind of self protection.

Three, considering the problems in the judicial practice, while also taking into account our country legislation is not a reality, the number of lawyers to participate in the meeting, the law should not be stipulated too mechanical, not to make it rigidly uniform.The decision in this article will participate in the number of lawyers met with the client and lawyer, by a number of client and lawyer according to the client's economic situation, case of actual need, when meeting with risks and other factors to determine the meeting of the.

Four, consider the actual situation to the lawyer cross area case, consider saving judicial resources and reduce the burdens of parties, lawyers off-site meeting, can hire local lawyers or lawyers participate in meeting with practice.

 

Article Sixth [] interview program

    The defense lawyers in criminal proceedings the suspects, defendants, any form of arrangement and approval by the public security organs, without people's Procuratorate and the people's court, except as otherwise stipulated by law.

Defense lawyers hold the following certificates and documents to residential surveillance authorities met the suspect, the defendant requests to the custody or charge, detention or for residential surveillance shall arrange lawyers for timely meeting, shall not be any reason to delay:

(a)A lawyer's practice certificate;

Two.Book letter or legal aid commission;

(three) met the suspect, the defendant lawyer special letter of introduction.

 

[the problem]

The current law in judicial practice to meet existing suspects in custody, the defendant's problems mainly exist in the following three aspects:

1The defense lawyers. Still need to go through the approval or approval in disguise.According to the "criminal law" article96Provided for in the second paragraph: except in cases involving state secrets, the lawyer to meet without the approval of the investigation organ. "Six authority" article9On confidential case explanation is: "the case or the nature of the case involves state secrets", not because of investigation in criminal cases related materials and processing opinion need to secure not by refusing to arrange the meeting. Accordingly, non classified cases will need not approved. Unfortunately, in practice, almost all cases need to go through the approval.

2. Will arrange for the approval of the meeting of alienation, arrange time delay."Six authority" article11The provisions:"...... Lawyers met the suspect, shall arrange to meet in forty-eight hours, for the organization, leadership, to participate in the crime of underworld organization, organization, leadership, in the common crime more terrorist organizations or the crime of smuggling crime, drug crime, the crime of corruption and bribery and other major complex two, lawyers to meet with the criminal suspect, it shall arrange the meeting in five days." But in practice, this arrangement is often alienated to disguise the approval. What is more, even the48Hours to arrange for the distortion48To arrange time hours, deliberately delayed the time to arrange.

3At meeting procedures cumbersome, depriving the lawyers met with the right.For example, some places require lawyers should the authorities handling the case, even the certificate issued by the local politics and Law Committee, Discipline Inspection Commission agreed to meet with; in different stage of the proceedings to meet with the criminal suspect, the defendant also need to house of detention were issued the opinion recommending prosecution, suit and the court judgment can handle the meeting procedures; in addition, the individual parts of the the detention center was even asked to see the lawyer license is stamped with "criminal defense training chapter", not the chapter shall not be arranged to meet. Obviously, to meet these procedures cumbersome became a means of handling organs for lawyers, deprived of the right of.

 

[] the relevant legislation

"Russian Federal Criminal Procedure Law" article46Shall have the right to participate in the litigation, the suspect in the defender when, can obtain a defender to help. The code states lawyers in criminal cases must submit the certificate of lawyer and a letter of introduction. But there are no provisions shall be subject to the approval of the authorities handling the case.1988Years4In March, the Japanese Ministry of justice abolished before exercising "general assigned book system", to "a designated meeting notice", its content is: "because the necessary investigation, place and time of the meeting date, otherwise specified", which reflects the Japanese Criminal Procedure Law Article39The spirit: that is, as long as there is no exception, can be free to meet. Some scholars further pointed out that, in exceptional cases only allows the investigation organ to exercise the right to meet the specified. In general, not to specify the reasons for not holding the book to meet, which is actually equal to establish lawyer no approved rules.

 

Explanation and demonstration []

This article aims to eliminate common cases in the lawyers met with the right of approval, the implementation of the "three certificates barrier free meet" system. Reason.

First, cancel the arrangements and approved the right to meet the common case is to the provisions of the criminal procedure law.According to the1996Years of "Criminal Procedure Law", met with non classified cases investigation need not have approved, but only need to arrange in a particular period of time. But in practice, this arrangement is often alienated to approve, cause right defense lawyers were deprived of or in disguised form deprivation. Therefore, we should cancel the ordinary cases meeting arrangement and approval authority, which can be barrier free meet. But considering the particularity of classified case, and "Criminal Procedure Law" stipulated explicitly classified cases need to go through the investigation organ for approval, so it can be such a case as an exception to the provisions.

Second the provisions, "three barrier free meet" system is to implement the "need" of the law.According to the provisions of the new "lawyer law" thirty-third,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. But in practice, "lawyer law" provisions are commonly used, the reason is in conflict with the relevant provisions of the criminal procedure law, in order to implement the "Lawyers Law" provisions, to eliminate the conflict law phenomenon, it is necessary in the criminal procedure law 3 barrier free meet system.

 

Article seventh [rights not to be monitored]

The case handling personnel, prisoners may monitor the between defense lawyers and the suspect, the defendant's meeting.

 

[the problem]

In practice, for a variety of worry, defense lawyers met with the suspect in custody, the investigation organ will almost always to present supervision. Investigators may at any time, discipline and warned of AC content suspension of lawyers, and even direct seizure lawyer certificate. In some places the investigators is not present, but in the meeting places, I recorded installed monitoring facilities, during the recording of lawyers. These practices make between defense lawyers and the suspect can not be normal communication case, thus unable to effectively guarantee the full exercise of the right to defense.

 

[] the relevant legislation

The United Nations "basic principles on the role of lawyers" article8The provisions by all people, arrest, detention or imprisonment, sufficient opportunities, time and facilities, without delay, in the not to be tapped, without inspection and complete secrecy accept lawyer visit and contact a lawyer consultation. Such consultations can law enforcement officers in the visible but listen to not see within range. "Standard Minimum Rules for the treatment of prisoners" article93Regulation: untried prisoners can meet with lawyers, police and prison officials for prisoners and lawyer talks between the eyes, can monitor, but not within the distance you can hear the conversation. "The protection of all subjected to any form of detention or imprisonment of the principle of" article18Regulation: a detained or imprisoned persons and their legal advisers met, in the law enforcement personnel within sight but beyond the scope of the hearing. The criminal procedure code of Italy No.103Regulation: not allowed between the defenders, technical advisor and assistant to help staff conversation and communication.

 

Explanation and demonstration []

First, give the lawyer meets is not to be monitored rights is to implement the "need" of the law."Lawyers Law" provisions of article thirty-third:"Lawyers met the suspect, the defendant, was not listening." But in practice, the case handling organ often do not perform "lawyer law" provisions, but according to the "law of criminal procedure", to present to supervise lawyers met, the "Lawyers Law" exists in name only. In order to eliminate the phenomenon of conflict of laws, it is necessary to cancel the investigation organ according to the circumstances of the case can be sent to specified presence over the meeting in the "criminal law", and give the lawyer meets is not to be monitored rights.

Second, to meet the process was not listening is the basic guarantee of defense lawyers and the suspect, the defendant to communicate freely, and full justification necessary defense.Defense lawyers to meet with the criminal suspect, the defendant's purpose is to understand the circumstances of the case, to better safeguard the crime suspect, accused person's legitimate rights and interests. If the investigating authorities to present or meet the process be monitored or recorded on theft, criminal suspects and defendants, the psychological pressure will increase, so that it can not come to the defense lawyer on the case, the defense lawyers did not understand the circumstances of the case, to meet a mere formality, not on the basis of effective defense.

Third, met with the process was not listening should be understood in a broad sense.Although the "Lawyers Law" established the meeting process is not monitored rights, but in many places the case handling organ is still in the "Criminal Procedure Law" allows the investigation organ staff at the scene and refused to implement the "Regulations" on the grounds of law, and the word "listening" deliberately narrow interpretation, that investigation organs still has the right to monitor on the meeting, process audit and even eavesdropping, seriously violated the spirit of the legislation, therefore, it is necessary to do the general explanation of "listening", banning all monitoring, monitoring, auditing, wiretapping interference right normal behavior.

     

Article eighth [meeting] conversation is not restricted

    The conversation between defense lawyers and the custody of the suspect, the defendant is not restricted. But not in violation of the law related provisions.

 

[the problem]

In judicial practice, the conversation between defense lawyers and defendants are subject to various restrictions. The main manifestations are: no defense lawyers and suspects talking about the case; defense lawyers to meet with the criminal suspect shall not exceed the scope of content with outline; present supervision meeting with investigators will direct and chipped, stop the lawyer to suspect a deeper understanding of the case; in some places the investigation organ also stipulates, lawyers provide legal advice should be limited to the method and content of the law itself are explained.

 

[] the relevant legislation

The United Nations "basic principles on the role of lawyers" article8"The prisoner; United Nations Standard Minimum Rules for the treatment of" article93The protection of; all under any form of detention or imprisonment "principle" of the United Nations18The American Convention on human rights "in"8Article2Paragraph4The Russian Federation; "code of criminal procedure," article46Article, article47Article, article53Article. General foreign legislation on AC content when lawyers did not make a clear limit. The main reason is that the United Nations Convention has established investigator meeting may be present, guards only in the visible but listen to monitor with invisible within the specification range, therefore, the communication law met natural but also impossible not limit.

 

Explanation and demonstration []

This article aims to abolish unreasonable restrictions on the communication content, establish barrier free communication rights.

1. prohibit or restrict the defense lawyers and defendants AC case cannot complete the purpose and task of the meeting.The case itself is a lawyer with the core of criminal suspects and defendants, when the conversation, if you can't talk about the case, the defense lawyers is meaningless. Both the international criminal judicial documents or the code of criminal procedure, they are not on the defense lawyers and the suspect, the defendant's conversation to limit, not only such, some countries have even defined, defense lawyers and the detainee's meeting and consultation should be unchecked, not be eavesdropping and complete secrecy under the.

2At the relevant norms of lawyer met with AC content listing rules, but in practice the alienation as a limit.The current system of communication are the content of the listing rules,Such as the National Bar Association lawyer "specification" criminal case No.28The Beijing City, made according to the new law "" of the "lawyer met the related problems in custody of criminal suspects and defendants, provisions", etc.. However, enumerative method will be missing, more important is, once to allow the exchange of content list, it will often be the case handling organ for utilization as a limiting interviews conversation basis, the correct way is not to do any restrictions.

3Would not be monitored. The communication content nature should not be subject to any restrictions.Taking into account the "Lawyers Law" provisions, met with investigators not listening, defense lawyers and the suspect, the defendant meets with the exchange of content as long as it does not violate the relevant provisions, shall not be subject to any restrictions.

 

Article ninth [the meeting time, frequency and duration of each meeting]

     The defense lawyer may suspect in custody, the defendant to meet in the statutory working hours.

     Defense lawyers met with the times and each time the suspects, defendants met with unlimited time.

 

[the problem]

In practice, the case handling organ often for various reasons to meet with obstacles.

1The lawyer to meet the time limit.In practice, as long as the investigative interrogation and the lawyers met with the time conflict, will always give priority to meet the requirements of the investigation organ of hearing. In some cases, the investigation organ may even through continuous arraignment, extended time hearing time, occupy the lawyers met with time.

2Limit the time and frequency of meeting.Many places in the investigation stage only allow lawyers met again, and were extremely unreasonable restrictions on the meeting time, simply can not achieve the purpose of this meeting.

3Restrictions on lawyers, meeting places.Some of the meeting rooms are divided into two parts, the vast majority of the room as the hearing room, only to the case handling organ, straight set aside a few rooms and one or two rooms for the lawyer to meet the use. Often many hearing room unused, and lawyers have to wait in line, sometimes not on the row number can not be met.

 

[] the relevant legislation

    "International Convention on Civil and political rights article"14Article3Paragraph2A: shall give the defendant to adequate time and facilities to their choice of lawyer contact "; the basic principles on the role of lawyers in"8A: the arrest, detention or imprisonment of persons shall be provided with adequate opportunities, time and facilities...... And lawyers; "penal code" Russia article47Article4Paragraph9Requirement: criminal defendants have the right to meet, alone in the first before asking and advocate content confidentiality, frequency and duration with unrestricted. Visible, the foreign legislation is generally believed that, time and the number of lawyers should not be restricted.

     "Provisions of article ninth of the Justice Department lawyers to criminals in custody Interim Provisions":"Lawyers should abide by the prisoners, prison time.""About lawyers in the investigation stage in the criminal lawsuit activity ("1996Years12Month20DayThe Ministry of Public Security issued)Rule thirty-second: "lawyers may decide to meet with the criminal suspect in time, according to the circumstances of the case and the need for the number of requirements, the investigation organ shall be arranged. The lawyer to visit the suspected criminal unlawful interference."Beijing City Bureau of three houses "lawyer met the provisions of relevant issues in custody of criminal suspects and defendants,":"The investigation organ and shall guarantee the lawyers met with the suspect in custody, the normal time and times, lawyer to meet regulation shall abide by the authorities and the handling time and rest time work, shall not interfere with the normal handling cases."Sichuan Province2009"Lawyer met the provisions" of suspects in tenth:"The investigation organ and shall not limit the time and the number of lawyers to meet with the suspect in custody, but lawyers shall abide by the provisions of the case handling organ and the working time and rest time."Through the above legislation can be seen, the lawyer to meet the times and the time should not be subject to any restrictions, but with time, shall abide by the detention institution schedules and work time.

 

Explanation and demonstration []

This article aims to establish the number and time of lawyers is not restricted, the effective protection of lawyers.

1Defense counsel met with limited time. Violation of the provisions of the idea and the principle of the equality.At present, the parties met the requirements to adopt two different processing methods for the investigation organ, the hearing, the must24Hour reception at any time, no time limit, and lawyers must8Within hours, the even often is in a state of political learning or prisoners rest time as an excuse not to arrange the meeting. This distinction to treat severe violation of the equality of the prosecution and the defense of the idea, therefore, it is necessary to explicitly stipulated in the law, as long as it is within the statutory working hours, lawyers shall have the right to custody of the suspect and the defendant to meet.

2The lawyer meets with time. Time limit for the rest will make right was deprived.Although some local lawyer to meet regulation shall comply with the provisions of the working time and the rest, but because of the often adjust the working hours and rest system make use of this provision, leading lawyers met often do nothing, right cease to exist except in name, because of this, it is necessary to meet the time limit for the statutory working hours, and not one of the specific work and rest time.

3At time and the number of security defense normal meeting to fully defend ready.The relevant international conventions, criminal judicial documents and foreign legislation stipulates: should guarantee the defense lawyers and detention or imprisonment is met, contact time and convenience of prosecution person. This is the guarantee of the lawyer comprehensive and accurate grasp of the case, to effectively carry out the work of security defense. Otherwise the law will be difficult to play the role of supervision and restriction for the investigation activities, is also difficult to effectively safeguard the suspect, the defendant's legitimate rights and interests. In particular, the institutional environment in China's defense lawyer investigation and evidence collection right severely limited, through the full interview to understand and grasp the case becomes more and more necessary.

 

Article tenth   [The meeting record]

During the meeting, the defense lawyer may meet with the process to make meeting records. Make meeting records, when necessary, should let the suspect, the defendant signed.

During the meeting, with the consent of the suspect, the defendant, the defense lawyer may record, with video, photo process. Defense lawyers for recording, video, photo, the detention house shall not engage in any form of block.

Transcripts of the meeting and the recording, video, photos, can not reveal to the co defendants, witnesses and suspects, the relatives of the accused.

 

[To solve the problem]

1In the judicial practice, the attorney for the defense, will be able to take pictures, video recording, technology is applied to the meeting records, local regulations are not the same. Some local regulations, lawyers for the audio and video to the consent of the case handling organ, detention and custody of the suspect, the defendant three party agreement; some local regulations, must obtain the consent of detention and criminal suspects and defendants, agree with. These Provisions greatly limits the lawyer for science and technology for the convenience of.

2Use for the formation, met with in the process of material, the current law has no regulation. In judicial practice, had a lawyer was punished for these materials will be leaked to the family situation.

 

[Explanation and demonstration]

This article use3Section to the meeting process of recording and use, conditions and provisions made clear.

In general, the lawyer to visit the suspected criminal, defendant whether records, records of what content and the choice of method for records, matters of principle belongs to advocate self determined, by the defense lawyer according to need, such as the freedom to decide cases habit. The development of modern science and technology provides many tools available for defense lawyers quickly and accurately, intuitively records meeting process, the defense lawyer may depend on specific free documented ways.

1Defense lawyers to make meeting records. In case of criminal suspects, defendants, let the signature confirmation, can confirm the defense lawyer's record is complete, accurately reflect the true meaning of criminal suspects and the accused, but also in the defense lawyers and the criminal suspect, the defendant on the matter in dispute with as objective evidence.

2Defense lawyers. Allow recording at the meeting, not only can save defense lawyers were written to meet the process time, but also conducive to the defense lawyer for the meeting was in favor of the defendant evidence timely, accurately to be fixed.

3. transcripts of the meeting and recording, are to meet with documented the process method, the difference is only a record of the different ways, does not have the difference between what the essence of. Since make meeting records need not ask authority and guards the agreed, then recording should not ask authority and guards the agreed. Importantly, these contents are between lawyers and defendants, personal communication, third party has no right to interfere.

4. judges and prosecutors, police making interrogation record or record of interrogation, video, photos without the consent of the consent. Without any justifiable reason, require that the lawyer to meet process of audio and video to the consent of the authority and the approval, is a different or discriminatory.

5. during the meeting, recording, video, pictures relating to the criminal suspect, the defendant's right of portrait, dignity and their relationship of trust, therefore it shall obtain the consent of the suspect, the defendant's consent.

6. use of transcripts of the meeting, audio, video, photos, to the consent of the suspect, the defendant's consent, and only for lawful purposes. The lawyer and criminal suspects, defendants protected the exchange between defense lawyers and the suspect, the defendant secret exchange privilege. This means that, without the consent of the suspect, the defendant, defence lawyers may not be meeting records, recording, video and photos to others.

7For the abuse of meeting records, recording, video camera, the behavior of materials, through the occupation punishment, shall be investigated for legal responsibility in the form of deterrence, must not give up eating for fear of choking and banned all recording, recording, photos.

 

Article eleventh [Verification of the material during the meeting]

Since the date of review and prosecution, meeting, defence lawyers may apply to the criminal suspects and defendants, read, to produce the materials, to verify the evidence, discuss the defending opinions and the suspect, the defendant.

 

[To solve the problem]

In judicial practice, sometimes there are prohibited lawyers will copy the files to the criminal suspects, defendants read, show case, and also had a lawyer for the materials read to criminal suspects and defendants, and the pursuit of the criminal responsibility of the situation. This practice, seriously affecting the preparation of case's lawyer, but also greatly delayed the time of trial, trial for the effectiveness of criminal suspects and defendants, the effective participation of defense and self defense set unreasonable obstacles.

 

[The relevant legislation]

A lawyer can meet to the crime suspect, accused person present, read the materials, the legislation of the countries is not clearly defined. But in practice, are regarded as this is suspect, the defendant enjoys the rights. Because the suspect, the defendant enjoys the right of cross examination, and this is the way to exercise the right of cross examination, the suspect, the accused has the right to trial before the testimony to prepare. Now, in the European Union, legislation or legal precedent established such a rule: in the absence of law case, suspects, defendants can obtain a copy of the materials from the prosecutor's office; in a law case, the suspect, the defendant can obtain a copy of the materials in the case file from the lawyer. Since these countries have allowed suspects and defendants, obtain a copy of the materials, the lawyer met with suspects and defendants, show or read the materials, and certainly no criticism.

German Criminal Procedure Law Article147Article7The paragraph also have similar provisions.

 

[Explanation and demonstration]

This article aims to guarantee the defense attorney effective defense and the suspect, the defendant to the defense of effective participation right.

1The defendant is aware. The evidence against her right. The right to know the criminal suspects, defendants given to the materials, is to ensure the effective preparation for trial, the full exercise of the premise and foundation of the right of defense.

2. defense counsel to the suspect, the defendant to verify evidence and exchange views on defense, is respect for the suspect, the defendant lawsuit main body status, it is a duty lawyer. Because, the suspect, the defendant is not lawyers bear the consequences of the case.

3Defense lawyers. Allow to suspect, defendant, read the materials to produce positive effect, can achieve the following aspects:

FirstThe defense lawyer, early to suspect, defendant present, read the materials, to discover the evidence of the existence of defects. The early to the prosecutor told the situation, help prosecutors dropped the charge to avoid miscarriages of justice.

Secondly.In the case of more solid evidence, which contributes to the lawyer persuaded of criminal suspects and defendants, the correct assessment of their own situation, early abandon adversary, positive plea for clemency, this can save a lot of litigation resources;

Thirdly, in the pre-trial allow criminal suspects and defendants, aware of the content, to ensure that the trial procedure orderly, coherent, effective.In does not allow criminal suspects and defendants, prior informed the content of the case, in the cross examination, if the requirements of prosecution evidence one one check, check, identify, will not only cause confusion, and trial, but also affects the efficiency of the trial. If the case is very complex, the whole court even paralysis. Check the evidence and the defendant lawyer in the trial of former is an effective way to solve this problem. Disclosure of evidence in the condition, lawyers in pretrial discovery to the suspect, the defendant to check the evidence is an indispensable link. In fact, in the judicial practice, in cases in which summary procedure is applied and the criminal reconciliation cases, in order to speed up the trial process, saves the lawsuit resources, some localities have begun trial accused of a comprehensive examination before trial system, and have achieved good results.

4Opponents worry, for allowing defense counsel to the criminal suspect, the defendant present, read the materials easily lead to the suspect, the defendant confession or lawyer criminal suspects, defendants confession induced problems:

First of all, to the suspect, the defendant, read the materials show with no direct causal relationship.Even if not to the suspect, the defendant present, read the materials, the suspect, the defendant may also. On the contrary, even to suspect, defendant present, read the materials, if the prosecution evidence is solid, reliable, so the suspect, the defendant also rarely venture. Therefore, the best way to prevent the crime suspect, the defendant confession is timely, complete, accurate and collect evidence and the establishment of a complete system of evidence, and not on the limits of criminal suspects and defendants, the right to know of files.

Secondly, when to allow lawyers to suspect, defendant present, read the materials related to the different interests of the balance.In the investigation stage, generally speaking, the case is still in a state of uncertainty, the evidence system is not stable, both sides has not formed the substantive confrontation. In this case, in order to ensure the investigation organ can effectively combat crime, temporarily sacrifice suspects the right to know can accept files. However, the prosecution case, it shows that the evidence collection process has been completed, has formed a substantive confrontation both sides. In this case, the right to know the limits of criminal suspects, defendants on the materials to ensure that the necessity of the effective collection of evidence has been greatly reduced, in contrast to the suspect, the defendant knowingly file material necessity to effectively prepare quality certificate is greatly enhanced. Therefore, we believe that, since the stage of review and prosecution, defense lawyers will be able to criminal suspects, defendants, read the case materials show.

Third, allowing defense counsel to the crime suspect, accused person present, read the evidence may cause the defense lawyer lure criminal suspects, defendants confession problem, can be through the strengthening occupation moral construction of criminal defense lawyers and punish the offenders to be avoided, there is no need to deprive the suspect, the defendant because of fear defense lawyers abuse this right on the materials of the right to know.

 

Article twelfth [Accept the relevant written materials during the meeting]

During the meeting, in connection with the case of written materials counsel can accept the suspect, the defendant submitted, also can be to suspect, defendant plea, relevant laws and regulations and other written materials, but not to assist the criminal suspects and defendants, forging or destroying evidence.

 

[To solve the problem]

In judicial practice, generally between prohibited defense lawyers and criminal suspects, defendants are provide written materials and records relevant to the case. This prohibition, serious damage to the meeting between defense lawyers and criminal suspects, defendants and lawyers and criminal suspects, defendants to defense preparations.

 

[The relevant legislation]

During the meeting between defense lawyers and the suspect, the defendant can provide each other with written materials, both the criminal procedure law, International Convention and the major countries have been expressly recognized. The difference is, in some countries (such as Germany), in very exceptional circumstances (terrorism), the right to a certain limitation.

The relevant legislations: Japanese Criminal Procedure Law Article39Regulation: the body was accused or suspected of restraint, without a witness, and to defend or the entrusted will become the defender met in person, or receiving documents or articles; German Criminal Procedure Law Article148Regulation: the accused person, even if it is not freedom of action, allowing defenders written, oral intercourse; Korean criminal procedure law article34Regulation: the counsel or to defend people, can visit the defendant or suspect in custody, can receive the documents or articles, can let the doctor; Italy criminal procedure law article103Article6Paragraph: a ban on the communication between the accused and his people were detained or inspection, unless the judicial organs have every reason to think about the letter belongs to articles of crime..

 

[Explanation and demonstration]

This article aims to guarantee between the defense lawyers and the suspect, the defendant's secret exchange privilege.

1. compared with the oral communication, written materials with careful, strong logic, clarity and can post query.In the complex case, because of the existence of complex character, property, time and arcane terminology, in a meeting with finite time, sometimes only oral defense lawyers and the suspect, the defendant's difficult to clearly described, in this case, it becomes very important to defense lawyers and suspects the defendant was prepared beforehand, written in a meeting before. This preparation can make oral communication meeting more careful, more logical, more rational, and written materials in the end of the meeting will be prepared to give each other also help defense better to each other after the meeting. This approach for the effective exercise of the right of defense is very necessary.

2To prevent the defense lawyers and criminal suspects, defendants by mutual written material machine series, good fake or destruction of evidence is to strengthen the lawyer's occupation ethics and punishment of offenders, but not completely banned both provide written materials.The reason why some people opposed the defense lawyers and the suspect, the defendant was written communication, mutual provide written materials, the most important reason is that the fear of both sides through to provide written materials opportunity, forge or destroy evidence of collusion. Undeniable, without any form of inspection, between defense lawyers and the suspect, the defendant free mutually provide written materials may indeed occur in collusion, forge or destroy evidence, but this should not be our completely prohibited between mutually provide written materials for. In fact, the oral communication between defense lawyers and the suspect, the defendant has evoked collusion, forge or destroy evidence may, we has not banned the verbal communication.

 (to be continued, then below)