Preface:"The Qin people too sad, and future generations of sorrow after sorrow; but not take warning, also make later generations and sad for them"

 

Law Division Angle Color Again Copy Ask

(2010Years03Month20Day 11:30 Source:Economic Observer)

 

   Once upon a time, a lawyer in Chinese, especially Chinese the mind of the young people have a positive good image. They are holding a shield, defend the rights of the parties, a sword in one hand, and the powerful government body or personal struggle, and safeguard fairness and justice. They were a symbol of the new force, is expected to pull the country out of its former chaos and hideous mire.

After the "Cultural Revolution" lawyer in the trial of the "Gang of four" court, and boldly defend their free of political bound, renewed the China social legalization of expectations in the hearts of many people. After that time, Chinese lawyer group gradually become mature and perfect. A good image of their has been consolidated in some from Hongkong and USA China TV drama, the mind of justice, quick thinking, sharp rhetoric, able to act the people and their occupation became the object of young people envy. In Chinese more liberal and western law school, students for the "kill Kennedy", be profuse in praise the film, not afraid of power, Yong muckraking the American lawyer shaped them to future occupation role expectations. The legal person of be like hunger and thirst to Chinese to obtain nutrients from the law circles in Europe and America, trying to since the Western category, concept and rules to re shape China judicial system, law is regarded as a Chinese can promote the development of society.

However, in recent years, all of this with the increasingly large national rights and get in by every openingCommercialLogic and towards the end. Although we are difficult to judge the trend when it started, but we have to see clearly it has brought to the social culture and the psychological impact. The ugly events, too much of a bad situation and system too long delayed, seems to make people for the judicial system and the system of the practitioners have lost confidence, contempt and ridicule instead of hopes and dreams.

Gradually, ring sets in the lawyer's head began to dim, in the eyes of many members of the public, they even into play the Jackal to the tiger evil acts. Government forces rampant violations of the rights of the people has caused widespread resentment, a serious gap between rich and poor make the bottom of society feel frustrated and resentful great, some chaotic social order and the crime ridden people suffer, when some lawyers and people in the eyes of the "villains" stand together, engaged in the defense of this normal work for the suspects, their body is soiled, but to bear the grievances of autocracy, corruption and social inequality.

In the "Li Zhuang case" events, Chinese lawyers had a whole reputation crisis. Prior to China progress of the rule of law, there has always been a benign role of the media, in the time of more or less played a important role. Some people in flagrant violation of the "presumption of innocence" of the spirit, the party accused of "unscrupulous lawyer" and. Then, in the powerful public power between bound and people hate lawyers, began to wander around, not know what course to take. Their edges are removed, morale was lost, social function is dispelled, no longer like a warrior, and seems to become own humble man, no longer is the power to promote social progress, and seems to be in power and a realistic compromise becomes dull and commonplace.

A miniature lawyer fate is also China whole process of rule of law. The modern history of the China has been more than 10 years of lax, both China's rule of law, it is also a lawyer is overthrown, lawyers completely disappeared in the. Later, power of attorney had recovered, but under the background of new era, they started under a new form of pressure, this pressure compared with the former is more subtle, but the effect may be more powerful. Power is a new way to complete the lawyer groups yield, incorporation and castration, in this process, it also seems to be the new way of communication and sensational skills.

In this process, lawyers will no longer receive physical punishment, he is facing an institutionalized coercion. Many people think the law, judicial institutions for lawyers and prevention, under the national legal and judicial system, they seem to be from the beginning was judged to be opposite to make trouble, the lawyer, particularly in criminal defense lawyers face many traps, slightly careless or jail.

"Criminal law" article 306th by the scholars generally regarded as one for the defenders and agents of discriminatory provisions, the law calls As one falls, but still suppressed. Under the system of deterrence, law, especially criminal defense lawyers become vulnerable groups completely, in the public security organs to be a yes-man ingratiation, front, if there are unexpected disaster, what about the formation of a former as an equal strength. In this case, the defendant right can't be guaranteed, to general consternation or even shock miscarriages of justice appear repeatedly, also is inevitable.

The new "lawyer law" of 2008 China was very exciting, be regarded as a legal guarantee to help out the plight of lawyer practice. However, lawyers in the process of practice is still facing layers. Participate in the formulation of reasonable legislation by the jurists in reality not to perform, the biggest problem for Chinese rule. Whenever a new "lawyer law" and "criminal law" and other laws conflict, the instinct of organs of state power to choose the most favorable to them, the most convenient law as the implementation basis, so the civil rights have been ignored.

In theory, a modern society must be numerous to protect civil rights and property rights, to secure these rights, adjust their relationship with the public power, also created an increasingly complex legal system. The legal system that gave birth to the legal community law such professional, provide guidance for the rights and obligations of the public, to defend them in risk people face legal sanctions.

If the lawyer does not play the rule of defender role, no one can play. If the lawyer does not provide service, every citizen is helpless and lonely individual in the face of public power. Abide by the rules of the case may bring some and mass expectations do not match, and even make some people out of the punishment of the law, but the rules of the overturning will bring more serious consequences, it means that the overall rule of retrogression, perhaps we go back to the past when society. Therefore, any gaps in the public power to open in the rule system, citizens and the media should strain every nerve to make up, maintaining a sound and reputation of the judicial system.

Perhaps some people not to regard it as right, we worried indeed, in America and other western countries, the lawyer is sometimes ridiculed and hostile crowd, why should vigilant for lawyers China public discontent? The reason lies in the legal occupation groups, including lawyers, is a powerful social intermediate organizations in the west, is one of the cornerstones of the rule of law in the west, USA "Declaration of independence" of 56 subscribers in the 24 lawyers and jurists, while in the Chinese, this group still needs to be cultivated. Moreover, the hostility and attack lawyers has become a self fulfilling prophecy. Centralization want most to see the scene is the cleavage of society into isolated and individual, see in the same status people accuse each other of oppressed, to attack each other. The media and the public do not trust the people who want to change the status of the lawyers more get disheartened, thus completing the digestion process of lawyers centralized social function, so that they become completely a bunch of money and be kept constantly on the run of people, or is the capital and the powerful vassal.

In the current society and public opinion situation, prospect and destiny of legal occupation groups independent has been a serious threat, the relations with the judicial reform Chinese can not retreat, major problems can make persistent efforts. Therefore, to explore legal occupation groups to lawyers as the representative of the character, has become our "third wave of judicial reform" can not avoid the topic. We invited the Peking University law school professor Zhang Qianfan and associate professor of China Youth University for Political Science, Beijing law firm Q-day Zhou Ze, published their views on this topic.

Rights activists and power controller

Economic Observer newspaper: recently due to the impact of the Chongqing black and other events, role of the lawyer caused great controversy. In your opinion, what is the role of lawyers should be in the judicial system and society?

Zhang Qianfan: the role of the lawyer is to uphold the rule of law and social justice. Although many lawyers can not reach the standard, but the goal itself is no doubt. Of course, and state officials are not the same, the lawyer as ordinary citizens have no obligation directly to the social public interests, but just do their job within the limits prescribed by law. For example, a criminal defense attorney's duty is within the scope of the law as far as possible for the defense of the crime suspect, no matter who he is, because any suspects before being impartial conviction may be innocent. To do this, he is a good lawyer, regardless of how his defense style. His duty is to try various devices to find prosecutors loopholes, or how do you know it was not planted or miscarriages of justice? Conversely, if be a yes-man listen to what all above will, so he obviously is not a qualified lawyer, because he cannot help maintain the social fairness and justice.

Zhou Ze: on the role of lawyers in dispute, not only due to the impact of the recent events such as the Chongqing gang. Except for the "Big Woods" there may be some Behavior Anomie, is not really "good bird" lawyers, the contact of these lawyers will expand the individual legal problems for the entire group of lawyers problems, as an occupation groups of lawyers, because often entrusted to the criminal suspect, defendant, defense, for those who because of infringement and other illegal or breach of contract and become the accused agent action, which is often regarded as the "bad guys" to speak, for the criminals "or" guilt, which is regarded as the "bad guy". In addition, due to the characteristics of lawyer occupation is "who is who speak money", it also makes people feel there is no lawyer, no principle, no maintenance of fair and justice, but "money talks". This is the role of the lawyer.

In fact, the lawyer whether in civil litigation the plaintiff or the defendant agency, whether in criminal incidental civil action proxy the victim or the accused, defending suspects, all the Commission is based on the parties, all need to entrust the faithful to the party, the maintenance of all the legitimate rights of the parties.

Even the "bad guys", after all, also is a person, should also have the basic right as people should enjoy; even the "bad guys", also only assume its fault, illegal or criminal acts considerable responsibility, but not bear should not bear the responsibility, but they also have access to a lawyer to help to safeguard the legal rights. From constantly to expose miscarriages of justice, is regarded as the "bad guys" accused person, might not really be "bad", the judicial organs may be wronged their (possibly because of the abuse of power, but also may be due to lack of understanding ability), if there is no lawyers to defend the people, they have been wronged possibilities more and more. Therefore, the role of lawyers is twofold, one is the right guard, on the other hand is the restriction of power. The former can be regarded as the lawyer's social role, the role can be regarded as a lawyer in the legal system.

Economic Observer newspaper: what do you think of China lawyers for judicial reform and rule of law China social significance?

Zhang Qianfan: a lawyer is the maintenance of social rule of law is the most important force, not a lawyer or lawyers can not play the role of the society is impossible to realize the rule of law. Is generally believed that the judge is the backbone of society ruled by law, but a society by several judges which can support live? Must have a large number of lawyers engaged in various industries, in order to realize the social rule of law. For example, in USA, lawyers and judges are one and the same group, lawyer's quality directly determines the quality of judges. The number of lawyers before Chinese seriously insufficient, still less than the judge (in fact, many of the so-called "justice" is not the case Chinese or do not have the ability to decide cases). The lawyer is growing rapidly, but the quality is not guaranteed, in some sensitive cases by too many restrictions. In this state, it is not possible to achieve the rule of law.

Zhou Ze: in the final analysis, the function of justice is to settle disputes. In any case of justice reform, need to effectively solve the social disputes and conflicts as the starting point and destination. In a society, between citizens, enterprises and other organizations, state organs and functionaries and other different subjects, will inevitably produce conflict and contradiction. These disputes and contradictions if not effectively resolved, the society will not be able to maintain social order and stability, it is difficult to, basic rights and interests of the people will be difficult to be guaranteed. As a right defender lawyer, is undoubtedly the most active driving force of judicial reform China. At the same time, the status and role of lawyers also only in the government by law society can fully reflect a country lawyer; effect size, and the national rule of law degree, is proportional to the. Therefore, lawyers also of course is Chinese social legalization promoters.

The judicial system determines the lawyer status

Economic Observer newspaper: in your opinion, judicial independence is not what are the impacts of the law?

Zhang Qianfan: judicial system directly determines the judicial environment, also determines the quality of lawyer. You want to, if the judicial unspoken rule a country is "eat eat the defendant the plaintiff to win", will have to rely on bribery, tuorenqing, take the relationship, then the lawyer what else can we choose? In such circumstances, how could the lawyers to get healthy growth? If the judicial judgment is no analysis of the reasoning "eight shares", win also does not rely on the facts, legal principles, how can lawyers qualities be improved? The judicial system directly determines the lawyer's status.

Zhou Ze: the independence of the judiciary is not enough, the result is inevitable: often the result of judicial decisions do not depend on the judge's understanding of law and their own conscience, and depends on factors outside law.

Therefore, the performance of a lawyer in court, are often difficult to influence the judgment results. The parties to hire a lawyer, are in the pursuit of justice results, a lawyer in court, even higher level of performance is good, if not for the parties to get a good result of judgment, often will lose the trust of the parties; on the contrary, a lawyer even without what level, in court performance often is very bad, but because it has the relations, can through other ways to influence the result of judicial decisions, he will gain the trust of the parties. One cannot get the trust law is difficult to survive. Therefore, in the case of lack of judicial independence, in order to obtain a satisfactory judgment, the parties will often want to engage in relations lawyer, and the lawyers will focus more on the relationship and such things, so that the lawyers have lost their function, even may cause immeasurable harm to the lawyers themselves and the lawyer occupation, foundation and ultimately destroy the lawyer system and the whole legal system.

Economic Observer newspaper: the mode of criminal procedure China authority whether adverse effects on lawyers play? Whether we should reform the mode?

Zhang Qianfan: the powers of attorney of criminal procedure pattern is more restricted, especially in the trial is protected by the intervention of power situation is not conducive to the rights of the parties. Chinese should more Anglo American law system "adversary system", allowing both competition in court according to law and the facts are equal, so as to better play the role of lawyers.

Economic Observer newspaper: some lawyers for arguing for certain criminal defendant suffered some criticism on the society, what do you think of this?

Zhang Qianfan: This is the social law awareness is not high performance. Of course, Chinese lawyers are uneven, especially in the bad judicial environment easily become corrupt accomplice, so social reputation is not good. But to tell the truth, the lawyer reputation in the country are not too good, Americans often take lawyers. However, we can not give up eating for fear of choking, not because of some lawyer misconduct has rejected psychology on the legal profession, because Chinese society of rule of law eventually cannot do without the lawyer. So we have no choice, only to improve the lawyer's occupation and moral quality through the improvement of the judicial system, improve the judicial environment.

Zhou Ze: a lawyer for certain defendants criminal defense suffered criticism, mainly because of the "presumption of innocence", "crime", "criminal punishment", any person accused has a right to defense of criminal justice idea deletion.

According to the "presumption of innocence" principle, any person without the court convicted, shall be deemed guilty; and according to the principle of "legality", a person's behavior should be punished, must strictly according to the law, as long as the law does not stipulate should be convicted, it should not conviction, as long as the law does not stipulate to punishment, it should not impose penalties. But for a long time, a lot of people in the simple morality, accustomed to simply divided into good and "bad", always want to "bad" punished, and always to punish "bad guys" of the "government" (judicial) with confidence; and the "government" as a crime prosecuted people, people seem to be "bad", should be "evils". Lawyers for criminal defense, is often regarded as the "bad words", is in the way of evil and promote good, especially for those who are suspected of serious crimes in the criminal defense, criticism will inevitably be that only simple moral values and the lack of modern rule of law of the people's.

Notably, some judicial organs in criminal justice, often ignore the "presumption of innocence" principle, in order to highlight the "crime" of the "strength" and achievements, often before the court has not yet ruled, by making the defendant, the criminal suspect guilty even commit the most heinous crimes public opinion; judicial organs and even some deliberately to discredit the defendant, criminal suspects, thereby provoking people to the suspect, the defendant's hostility and hatred, and between the people of the criminal lawyer's criticism. This is a worrying phenomenon.

"Lawyers Law" also need to implement the

Economic Observer newspaper: law has many critics of "criminal law" article 306th, in your opinion, provisions for the defenders and agents of perjury crime is reasonable? Whether we should modify or cancel the provisions?

Zhang Qianfan: Crime of perjury which countries have, may not cancel. Once commissioned, the defender has the obligation to try to defend the accused, but must be within the scope permitted by law, the defenders can not actively or passively condone the accused of perjury. Evidence is the basis of the public credibility of the judiciary, which once constituted perjury, abroad is very severe punishment. However, "perjury" can not become the lawyers to justify disorder, can not be intimidated lawyers excuse. Is the domestic problems, many of the provisions of theoretical sense, one enters the judicial practice distorts, perjury is such. The defendant clearly by torture to extract confessions, the lawyer encouragement estoppel court, but if the court has received instructions to convict, so lawyers became the political decision obstacles, then to weave a "lawyer perjury". To find out whether lawyer perjury itself is not difficult, but the lack of an independent judiciary, this kind of problem can't be resolved.

Zhou Ze: over the years, there are many lawyers are "the defenders and agents ad litem, destruction of evidence, false evidence, prejudice to testify the crime shall be investigated for criminal responsibility", and many of the lawyer's criminal prosecution, it is hardly justifiable. This is the "criminal law" the 306th criticism, even some people claim to modify or cancel the provisions. In fact, been criticized by many in "criminal law" article 306th prosecution lawyer's case, the problem is not out in the law itself, but in the correct implementation and application of the provisions of.

In criminal justice, though the investigation organ, the prosecution organ and judicial organ are responsible for protecting the defendant, the legitimate rights of criminal suspects in the legal responsibility, but these organs value most is the "crime". For a criminal prosecution by defendants, suspects can be successfully convicted and punished, is a primary goal of the investigation organ, the procuratorial organs pursuit, the court has "hit rate" pursuit. Therefore, for the crime suspect, the defendant lawyer in the pursuit of goals and the public security organ, the procuratorial organs, and even the court, often is opposite.

In the collection of evidence for the use of lawyers, public security organs, procuratorial organs and hinder the realization of the goal of the court proceedings, the inevitable conflict with these to be the defendant, criminal liability for target organ. How to ensure that the "crime" as the goal of the public security organs, procuratorial organs and people's courts not to abuse of power, to fight "the defenders and agents ad litem, destruction of evidence, false evidence, prejudice to testify the crime", failure to realize its goal revenge lawyer, is a problem. Therefore, I think, "criminal law" article 306th does not have to be revised or repealed, but must be in the design of the system to handle the lawyer defense cases organs prosecution lawyers "destruction of evidence, false evidence, prejudice to testify the crime".

Of course, in view of the defendant, the criminal suspect guilty of criminal proof responsibility lies in the procuratorial organs, and the trial court cross examination procedure and forensic authentication, is completely possible to exclude lawyer perjury, even if there is destruction of evidence, false evidence, prejudice to testify the behavior, damage to the litigation activities is limited, and revenge lawyer the harm is great. Therefore, if cannot guarantee that lawyers are not revenge, it might as well call the "criminal law" article 306.

Economic Observer newspaper: the new "lawyer law" passed, the power of attorney got greater security, but the law in practice still has not been completely executed, and how do you evaluate the new "lawyer law"?

Zhang Qianfan: "lawyer law" provisions to do good for lawyers and defendants to meet such rights, is conducive to the protection of the legitimate rights of criminal suspects. Otherwise, meet in a long time not law case, the public security and procuratorial organs to review how the defendant's legal rights, of course, can not be protected; Chinese so much torture to extract confessions, so is the. We can see such a scene in the movie: often foreign defendant in custody, said the first sentence is "I want to see my lawyer!" To meet with a lawyer is a basic right of citizens legal or constitutional protection, can not be any person deprived. Chinese "lawyer law" provisions of the very good, but the local government departments do not fit, do not perform, lawyers to the request to meet with the criminal suspect, or not see; if a lawyer and guardsTheAdministrationPeople"" lawyer law ", the other would say" above also didn't notice ", notice as supervisor is more important than law. This is Chinese current law status.

Zhou Ze: "lawyer law" by the lawyers' rights have been protected, is entirely from the legal text sense. The new "lawyer law" that some lawyers rights, although the law has not been very good implementation in practice, but the law declared to right itself has very important significance. As our Constitution declares the basic rights of many citizens, but not in these rights are protected or damaged, people will take the constitution as the declaration of rights, "lawyer law" the rights of lawyers, lawyers will naturally going to argue, fight against lawyers in accordance with the law the behavior of rights and interests; even the fight no effect, but in the long term there will be the role of.

However, according to my observation and himself in the lawyer's practice, the new "lawyer law" has just declared certain rights to lawyers, empty to the lawyer a claim on the basis of justice, following the traditional and customary practically no what effect. This is because the "arranged to have the lawyers law" and other laws on the rights of lawyers has no specific security measures and systems, suffered the lawyer rights violations, no relief channels, so even if the lawyer right is damaged, it is impossible to get relief. Therefore, the role and influence of what kind of expect the new "lawyer law", is completely unrealistic fantasy.

Economic Observer newspaper: in the relevant legal provisions on foreign lawyers, what can we learn from it? Whether we should give a certain degree of judicial immunity, giving them more freedom and space?

Zhang Qianfan: a lawyer should play a role in the framework of the legal norms, which is the same in any country. The so-called "judicial immunity", actually refers to the legal authorization acting within the scope of rights, there is no absolute "exemption". The problem is how to safeguard the legitimate rights of lawyers? I think the main problem Chinese lies not in law, "lawyer law" revision has been quite good, the implementation of these Provisions is very good, but the problem is not going to implement the provisions. How to implement the rules is not a legal issue, but a law problem. At present, the lawyer will play a greater role, only to fight for their own freedom, in the words of the German jurist Ihering, and "fight for your rights".

The formation of occupation community

Economic Observer newspaper: in your opinion, lawyers should go further industry and autonomy?

Zhang Qianfan: a lawyer should fight for their rights, the lawyer can't like "a sack of potatoes as" isolated, that is easy to crush one by one. The legal profession to twist into a rope, to form their own occupation community, to truly representative of their interests occupation groups, to achieve a high degree of autonomy. The Beijing Lawyers Association of election, is a very good idea, do not think that this was a problem to the government. On the contrary, the lawyer only autonomous can improve the quality of their own, better for the Chinese social services. One day the lawyer is no longer a satellite government departments under the control of Chinese, not far from the rule of law society.

Economic Observer newspaper: many people think that, because of the influence of some legal provisions and realistic factors, encounter a criminal defense lawyer practicing dilemma, in your opinion, the existence of this phenomenon, how to get out of this predicament?

Zhang Qianfan: not only is a criminal defense attorney, any field once activist lawyer become vested interest, which by some departments as "deep hatred", will want to get rid of. The fundamental reason is that lawyers independent personality is also a lack of system security, the public awareness of the rule of law is not sufficient to provide public support, especially in criminal defense lawyer is more difficult, because they are often for all types of defending suspects, and corruption, broke it is China public deeply pained thing, a lot of people still do not understand why should these things defense, "Liu Yong case", "Li Zhuang case" reflects this point. I think this point can be changed, because the public awareness of the rule of law is not a short duration of time will be able to complete the. A possible way I can see now is to restore some of miscarriages of justice and truth, by way of telling the story to show people, if not criminal defense, looks decided cases may be an unjust. This might inspire wisdom, make the society to the role of defense lawyers have a more correct understanding, then the power to interfere in forming a kind of public opinion pressure.

Zhou Ze: I and many engaged in criminal defense or specializing in criminal defense lawyers to carry on the exchange, found the criminal defense attorney at present is in practice difficult. This dilemma is not only that the lawyers say often meet the difficult, scoring difficult, difficult to investigate and collect evidence, and lies in the evaluation of effect of confusion for defense. These criminal defense lawyer, professional level is relatively high, their defense cases often trial effect is good, but a lot of the adjudication of the case the results are often make it difficult to accept. Therefore, many lawyers have such confusion: Attorney what can play what role? If the received the money, and even received a lot of money, but the white defence lawyer argue, can feel at ease and justified?!

I did a lot of criminal cases, I commissioned parties are attracted, with great hope. I am confident that their professional level, of his doing during the litigation, believe the party also impeccable, but a lot of the outcome of the case also makes me hard to accept.

For example, a defendant's trial was condemned to ten years in prison cases (defense counsel did not guilty), the party family commissioned me to do the second defense, I also believe that the defendant did not constitute a crime (for trial lawyers are not the same), to defend the innocent, and bother hardships for court trial, invite the media reporters to attend, the effect is very good, the media public opinion also overwhelmingly condemned the verdict of injustice, but the court of second instance or upheld. After that, I represent appeal, continue to do the innocent plead for the accused, and the author put forward a strong criticism and questioned the decision of the court, the media follow-up were reported, the defendant family also continue to petitions, court two times after the retrial, the first defendant penalty of ten years reduced to three years, and then from three year to year. Now the defendant family still petition. In this case, the second instance of an unjust verdict and two times of retrial to justice together, let me feel, the role of lawyers may not appeal to the masses. Therefore, I often think, if countries do not want to let the lawyers play a role in criminal justice, cancel the defense system was simply, not let people believe the law then believe that lawyer, finally ended up all is lost.

As far as I know, the lawyer defending criminal cases the ratio is very low, many lawyers don't take criminal cases. Although this criminal charges and low risk a relationship, but the role of lawyers to reflect, can not say is one of the important reasons. I noticed, many powerful officials is not the law, not the law seriously, and they involved in the Lok Ma, but always spared no expense to find the best lawyers law, hope useful to lawyers, useful. Perhaps this is the "Qin people too sad, and future generations of sorrow after sorrow; but not take warning, also make later generations and sad for them.". To change the present predicament, must from the system to ensure the lawyer can play a role.