The lawyer: destruction of evidence, false evidence, prejudice witness to the criminal constitution analysis

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The lawyer to destroy evidence, false evidence, prejudice witness to the criminal Constitutional Analysis

Yin Xiaohong
 
   [Abstract] article 306th of the criminal law advocate destruction of evidence, false evidence, prejudice to testify the crime does not conform to Article 125th of the constitution "the accused has the right to defence" provisions of the defense against the defendant favorable legal and judicial authorities, should protect the defendant to defend freedom instead of deprivation and restriction, defense is free and disclaimer specification requirements, and the "lure" and "guide" and other neutral word there is cross lead to the legal limit is not clear, the law may be because semantic too wide a range of "accident" unconstitutional; the position of a lawyer 's set itself contains unclear, the lawyer, the judicial personnel and ordinary citizens discrimination without reasonable grounds excessive fortification, lead to discrimination, violation of the constitutional principle of equality; at the same time the legislative vagueness itself is not conducive to the protection of the accused and the law of human rights. Therefore, article 306th of the criminal law in violation of the provisions of article fifth of the constitution, the legislature should modify.
[keyword] article 306th of the criminal law of the principle of equality of human rights lawyers the right to counsel
The 1997 amendments to the criminal code, in order to prevent the lawyer by the criminal procedure law revised in 1996 and later formulated law gives them more extensive rights violations, obstruction of justice, the new 306th defenders and agents ad litem, destruction of evidence, false evidence, prejudice to testify the crime. The provisions of the "in the criminal procedure, the defenders and agents ad litem, destroy or forge evidence, to help the parties destroy or forge evidence, threat, seducing witness to change or make false testimony, is less than three years imprisonment or criminal detention; if the circumstances are serious, three to seven years in prison"; "the defenders and agents ad litem, provide, produce, citing witnesses testimony or other evidence inconsistent with the facts, not forged intentionally, not belong to forge evidence". Since its formation, the charges of debate and criticism as can be heard without end, more deputies to the National People's Congress specifically proposed to abolish the 306th bill. The 306th is called the hanging in the lawyer's head Damour damocles. But in 2009 Chongqing black storm in the Li Zhuang case, is this one accusation again pushed in the teeth of the storm, theorists have once again raised the research upsurge. The however, all the research basically is based on the perspective of criminal law, but rarely constitutional jurisprudence angle research. This article from the perspective of constitutional law review article 306th of the criminal law of the crime of perjury, and provide another thinking path legitimacy to the long debated the charges.

A, article 306th of the criminal law does not conform to Article 125th of the constitution "the accused has the right to defence" provisions of the requirements specification
The Constitution stipulates that the 125th:"...... The accused has the right to defense." How to understand the specifications? The need for interpretation of the constitution. Constitutional interpretation mainly adopted literal interpretation, systematic interpretation, historical interpretation and purpose interpretation etc.. On the basis of literal interpretation, which required the accused has justified the freedom. From the purpose of interpretation and analysis, the defense must be in favor of the defendant, the defendant has the right to obtain free defense, defense is the exemption. That is to say, the normative constitution article 125th requirements: defense against the defendant is favorable; the legal and judicial organs should be the protection of defendant's defense of freedom, but not to be deprived and restricted; defense of freedom and responsibility. Then, article 306th of the criminal law is in accordance with the constitution of 125th specifications?
(a) article 306th of the criminal law and "defense against the defendant favorable" has the contradiction
Thirty-fifth of the criminal procedural law stipulates: "the responsibility of a defender shall be according to the facts and law, materials and opinions proving criminal suspects, defendants not guilty, a mitigated punishment or exemption from criminal responsibility, criminal suspects, defendants, safeguard the legitimate rights and interests." Distribution of the provisions and the burden of proof decides that the lawyer can find favorable to the defendants evidence to protect the legitimate rights of the defendant. The defense is not only the passive defense, or active defense in order to safeguard the legitimate rights and interests of the defendant's conduct. The defender has the right to have a duty to use all legal means to find favorable to the defendants evidence, including the use of inquiry skills have the testimony of a witness. And the prosecution for the performance of the complaint function, will pay more attention to evidence of guilt, difficult to collect evidence can prove defendant innocent. Collect evidence of both sides through the opposite way to standing balance. The respective proof way to ensure the authenticity and comprehensive collection of evidence. During the court trial, the public prosecutor to produce evidence to prove the facts of the crime and the presence of the defendant s criminal liability; defense are put forward evidence in favor of the defendant and the prosecutor, defense. On the basis of court debate of the parties, based on the evidence to verify the facts to be proved, so that gradually clear, to judge the evidence of clear thinking and factual basis for the conviction and sentencing. Defense selection process itself of evidence is a legitimate boot process. But every one description or understanding of the fact there are deviations, and the judiciary found inconsistent would be considered by the induction of the attractant rate may be 100%, i.e.. So, to guide and to have clear boundaries? The lure of meaning, Professor Chen Xingliang from the legislative interpretation, judicial interpretation and theoretical interpretation of three point of view: "lure must take some means, including the means to material benefits and intangible benefits temptation." It is with one action guide to a target, the target is a temptation. The two words are cross cutting areas. Therefore, according to the Constitution can be the implementation of the "guide" may violate the rules of criminal law.
(two) article 306th of the criminal law to punish "lure" behavior limits the freedom defence, thus limiting the defendant to defend freedom
Freedom is permitted by law within the scope of the right things, but "lure" fuzziness "against" and "fact" has not yet been determined that the scope of the law is not clear. In the legal permission scope is not clear, the only safe way is what all don't do. In order to avoid the risks, some lawyers do negative defense. Passive defense lawyers right of investigation and evidence collection is to give up, only for the prosecution evidence problems or understanding of the law of the defense; active defense is in favor of the defendant and the prosecution lawyer out contrary evidence against the prosecution's evidence. The right of investigation and evidence collection is one of the few law endows the proprietary rights lawyer, sophisticated design is modern judicial for the realization of equality of the prosecution and the defense of the accused, it is the right of defense from passive defense to active defense right right transformation necessary weapons. But because the lawyer did not dare risk a suspected of a crime to obtain evidence, will inevitably lead to a decline in the quality of criminal cases, damage to the interests of the parties, the loss of credibility. In practice, fuzzy to "lure" definition to arbitrary judicial practice in interpretation, so that a large number of lawyers for "lure" sin. It is because the defense behavior concept the connotation is not clear limits the defender to take all legal means, leading to low rate of criminal defense, deprived the accused person's right to counsel. According to the survey, in criminal cases, lawyers involved in the defence rate of only about 30%. The defender for fear of "lure" name and be overcautious, head pedal, to be very careful, not free to choose the way of defending. Article 306th of the criminal law provisions of improper interference of negative freedom of the accused, and its positive as not to obtain the right of defense to provide conditions and guarantee the accused, but limits the counsel for the defendant the right to defense of freedom.
(three) article 306th of the criminal law to punish "lure" the speech acts of violation of law of article 125th of the Constitution contains should have in the defense during the occupation
"Lure" many times only speech acts, or an "eye". Lawyer is the occupation behavior, as representatives of the National People's Congress should have immunity, namely "lawyers for practicing behavior and post behavior itself generated speech immunity" is, whether or hearing speech before trial, and whether the burden of proof or evidence of speech have immunity. Occupation of immunity of lawyer is not a privilege, but a lawyer occupation moral (maximize the maintenance of the legitimate rights and interests of the defendant) natural compensation; is to achieve "equality of arms" and accused the party to form the "inevitable requirement of equal competition". Accordingly, "lure" the remarks should have immunity of occupation in the general sense. Obviously, due to "lure" sin against the occupation of immunity of lawyer.

Two, article 306th of the criminal law violates the principle of equality in the Constitution
The thirty-third paragraph second: "citizens of the people's Republic of China are equal before the law." The constitutional principle of equality mainly includes two aspects: anti discrimination and anti privilege. Discrimination is forbidden by law, targeted to specific groups or individuals implement, the effect or purpose is to admit, enjoy any measures unreasonable distinction, exclusion, restriction and exercise the basic rights or privileges. ⑻ prohibits discrimination and equality in essence is consistent, because the equality does not oppose any difference, but against the difference between no rational basis for treatment. Therefore, "are equal before the law principle, in the original sense, not to prohibit any difference in the law,...... Ban is not considered reasonable reason based on difference". "There is no reason to differential treatment constitutes discrimination, while the common and long-term discrimination make ya specifically prohibited discrimination on the privileges and negative aspects as the principle of equality for resisting the law and practice in particular, ingrained inequality political needs".
The principle of equality as a basic principle of human rights protection, mainly used to constrain the legislation. It requires the legislature in the legislation must strictly follow the principles of equality, namely the same situation equal treatment, different conditions. Lawmakers may set the legal content free, but should be supported and restriction of constitutional norms. So, legislators have an obligation to the legal spirit of the Constitution and the constitutional norms, to safeguard the constitution to achieve and realize the value of constitution. Therefore, the principle of equality of nature for the review of constitutionality of legal privileges or set of differential treatment. Crime and punishment as a legal matter retention, of course, should be the constitutional principle of equality norms, "justice in its essence, is equal". This means that justice should be equal treatment of citizens, "justice is not to make the distinction between one person and another person: since the two person has a human characteristics, they in the judicial eye is equal to".
(a) article 306th of the criminal law on Lawyers without proper reason, the differential treatment
To determine whether the article 306th of the criminal law accords with the principle of equality in the Constitution can be studied from the following two aspects: first, give the lawyer separate legislation and punishment is reasonable on the basis of the Constitution? Whether differential treatment; second, if separate legislation and give special punishment is reasonable, so its degree is reasonable? The differential treatment is reasonable. The former can be legislative policy from legislators make law to practice and objective research; the latter mainly from the relationship between the legislation and the legislative purpose of investigation, namely "prohibit excessive damage limit state power and citizen's rights and freedoms".
First of all, the purpose of legislation can not illustrate the rationality of discrimination of lawyers. On the establishment of the purpose of the article 306th of the criminal law, vice chairman Wang Hanbin of the NPC Standing Committee in March 6, 1997 eighth session of the National People's Congress on the fifth session of the "about the 'people's Republic of China Criminal Law (Revised Draft)' not mentioned in the". But from the people's Congress Zhang Yan lawyers in 2000 put forward the "recommended the abolition of article 306th of the criminal law" bill, the NPC Standing Committee in 2001 to make the reply can be seen. The answer to that, with the increase of the defenders and agents ad litem, rights, illegal increased risk, in order to prevent the illegal behavior of defender, agent ad litem, it is necessary to set up the 306th article of the criminal law; and, the 307th and the 306th in the objective aspect of the crime is different, cannot be merged; for law enforcement personnel based on the occupation of revenge the lawyer's questions, and is still studying.
The author thinks, the criminal law will be a subject of crime is special, in the common law. The crime, in order to standardize the individual special provisions, should be in two situations: first, only the special subject to the implementation of this act, other people without the condition to implement this behavior; second, the implementation of special subject the same with other general subject has a greater social harm, statutory requirements stated in general terms have not covered the special law prescribed punishment of the crime of aggravated punishment, need. The subject of this crime, should not have uniqueness, other subjects such as the main prosecutor, judge, ordinary citizens can become this behavior. From the social harmfulness, legal implementation of this crime has no difference with the general subject to implement this kind of crime, no difference in the amount of. Especially the judicial personnel "harm law does not harm than the" small "know the law but break it" lawyer. In 2007 the revised "lawyer law" provisions, the lawyer is "to provide legal services for a client practitioners". It also provides that: "a lawyer shall safeguard the legitimate rights and interests, maintain the correct enforcement of law, and maintain the social fairness and justice." "The judges law" provisions, "judges" exercise the judicial authority of the state according to law, "the judges must faithfully implement the Constitution and laws, put one's heart and soul into serving the people". "The public procurators law" provisions, "the prosecutor prosecutors" exercise the national procuratorial authority according to law, "public procurators must faithfully implement the Constitution and laws, put one's heart and soul into serving the people". From the above provisions on lawyers, judges, prosecutors, three as the legal occupation community, jointly safeguard the dignity of law and social equity and justice responsibilities. But the three in which the role and function of play is not the same. A lawyer has evolved from the "national legal workers" to "social, legal workers" and then to "to provide legal services for a client practitioners", whose duties also experienced the change from "national service" to "social services" to "the service". Change of identity and duty to bear the social responsibility. The lawyer's job is mainly to provide legal services for the parties, lawyers can be said, "to maintain the correct enforcement of law, and maintain the social fairness and justice" duty is realized through "to safeguard the legal rights of parties", "defense lawyer's duty is only one focus, a responsibility and a kind of loyalty, that is our client service, any other consequences without worry caused by the defense case itself or the....... Our party has the right to require us to find and use all the factors "their advantage within the law and. But the judges and prosecutors as judicial personnel who exercise the judicial and procuratorial authority, whose main responsibility is to "faithfully implement the Constitution and laws", and on behalf of the state to exercise their functions and powers. Taiwan some scholars explain this problem from the defendants and prosecutors difference angle: "defend the legitimate interests of the protector of human, namely for the protection of the interest of justice with the assistance of criminal justice practice, in this case, the defenders in the public place. However, the defender of public position is different from the public prosecutor status, cover prosecutors to stand on the position of country specific objective of criminal prosecution, in order to maintain social order, but only to protect the legitimate interests of defendants accused, lest innocent people by the state punishment, or a misdemeanor who suffer heavy punishment, is the the concerned only for personal protection, does not lie in protecting the whole society, which can see, two of public welfare position a person, is not exactly the same." Said from this sense, the judicial personnel "law" than the social harmfulness lawyer "know the law but break it" more -- the law not only damages in the case of the rights of the parties, it will damage the credibility of the judiciary. Article 307th of the criminal law on the behavior of testifying against the aggravated punishment is proof.
Can say, our country about dominated by lawyers advocacy and litigation legal system, both substantive law and procedure law, from the legislative point of view, is to regulate the lawyer dominated occupation behavior, rather than the protection of the rights of lawyers led. From the legislative background of the article, showing the defender, agent ad litem in criminal proceedings can correctly grasp the role of doubt, the deterrent effect of the law to regulate the defenders and agents ad litem, behavior, objective effect may be sacrificed in order to promote the rule of law civilization in China at present is not perfect the criminal defense and agent system, especially the criminal defense lawyer for the corresponding price.
Thus, reply to lawyers in practice there are illegal acts by adopting special legislation is clearly not Rationality: 306th existing judicial personnel falsify evidence, destruction of evidence in practice, threatening, luring witnesses against illegal fact never change their testimony or make false testimony less than lawyers, and the greater the harm, root but the criminal law didn't alone, but only in the 307th article as aggravating circumstances. Therefore, the legislative purpose is elucidated from the reply of view, whether from the subject of crime is the only, or from the social harmfulness of crime, a lawyer for the differential treatment is not reasonable.
Secondly, given the lawyer heavier punishment is another manifestation of differential treatment. On the one hand, from the crime tenable condition of article 307th, significantly higher than the 306th. One is 306th including three kinds of crime, and the 307th did not include "destroy or falsify evidence,"; two is the 306th provisions as long as the "threat, inducement" witness to change or give false testimony that constitute a crime, the 307th one must achieve "by violence, threat, bribery, prevent the testimony or instigates others to commit perjury" level, while the former is very subjective and random is very large, in practice the lawyer was convicted of forgery; three is to help the parties, destruction of evidence, the 306th in the "serious" is the punishment to be upgraded conditions, while in the 307th article "serious" is crime elements. Reply that "criminal law on these two were to be regulations are the characteristics and limits in order to distinguish the two crimes, ensure that the judicial organ and accurate application of laws, against crime", shows the legislator to unnecessary discriminatory law was discriminatory and give the lawyer heavier punishment. On the other hand, the different 306th lawyers "lure" and "judicial personnel legal consequences to lure". The criminal procedure law of China stipulates that the forty-third: "it is strictly prohibited to torture to extract confessions and to collect evidence by threat, enticement, deceit and other illegal methods." In the criminal procedure law theory will generally be collecting evidence illegally behavior is divided into two kinds: confessions by torture and inducement. "The Supreme People's Court on the implementation of 'of the people's Republic of China Criminal Procedure Law' interpretation of several issues" sixty-first article: "forbidden to collect evidence by illegal methods. If the verification is actually using torture to extract confessions or threat, enticement, deceit and other illegal acquisition of testimony of witness, the statement of the victim, the confession of the defendant, can not be taken as a basis." "The people's Procuratorate rules" criminal procedure rule 265th: "it is strictly prohibited to collect evidence by illegal methods. To torture to extract confessions or threat, enticement, deceit and other illegal collection statement, statement of the victim, witness testimony, cannot be accused of a crime according to the." "The Supreme People's court, the Supreme People's Procuratorate, the Ministry of public security, the Ministry of state security, the Ministry of justice for death penalty cases reviewed to determine the provisions of" evidence regulation, using torture to extract confessions and other illegal means to obtain the confession of the defendant and obtained by violence, threats and other illegal means to witness testimony can not be taken as a basis. "Provisions of article first of the Supreme People's court, the Supreme People's Procuratorate, the Ministry of public security, the Ministry of state security, the Ministry of justice on several problems of exclusion of illegal evidence in handling criminal cases": "the provisions of torture to extract confessions and other illegal means to obtain the criminal suspect, defendant's confession and uses violence, threats and other illegal means to obtain the testimony of witnesses, victims statements, belong to illegal words evidence." Article second provides that: "the illegal words evidence confirmation in accordance with law, should be excluded, can not be taken as a basis." The criminal law 247th stipulation: "the judicial personnel of criminal suspects, defendants by torture to extract confessions or the use of force to extract testimony, is less than three years imprisonment or criminal detention. Cause disability, death, convicted in accordance with the provisions of law 234Th, article 232nd shall be given a heavier punishment." Visible, our country only to torture to extract confessions and violence of the Act provides for the crime, the inducement behaviors of the judicial personnel, the court during the trial, verified only on confession inadmissible, is not considered a crime, the provisions of article 307th no pigeon. As the law occupation community lawyer, seducing behavior in the investigation is treated as a crime behavior.
To sum up, the lawyers law and given a heavier punishment discrimination is no reasonable grounds, constitute the law of discrimination.
(two) article 306th of the criminal law on the punishment of lawyers is not consistent with the principle of proportionality
In addition, the removal of article 306th of the criminal law itself is reasonable not to talk, the only from the law punishment and the desired purpose. Constitutional sense of proportion principle is to adjust the relationship between state power and individual rights of citizens should be a basic principle insist, refers to the exercise of the state power to properly, necessary, balanced, not excessive, proportional, and shall not cause the illegal violation of individual rights of citizens. It includes three sub principles: in accordance with the principle of necessity and means of damage means to minimize the appropriateness principle, means the damage caused to individuals and output of the social interests balancing principle. The principle of necessity more attention to by many countries. It requires legislators to judge the relationship between legislation and the legislative purpose of the premise, to reach the legislation goal after confirming that legal violations by the means, we should choose more mitigation measures. In article 306th of the criminal law, from the evidence cognizance, forty-second of the criminal procedural law stipulates: "all facts that prove the true circumstances of the case, is evidence....... The above evidence must be verified before it can be taken as a basis." Therefore, lawyers proposed material was adopted as proof of the facts of the case before the evidence, are subject to identify the authenticity, legitimacy, relevance of evidence. Perjury "faced with the evidence submitted and reviewed the final link. If the evidence has not been submitted in legal form does not involve, does not have the evidence of appearance, cannot become the ultimate meaning of the evidence "shout. The prosecution can completely in the course of the proceedings in question, which will be the evidence materials out of the range of evidence. In addition, the evidence points to general evidence and crucial evidence, to help the parties destroy or forge evidence, or threatening, luring witnesses have the seriousness of. The lawyer's perjury plot is different, have different treatment methods, such as the lawyers law forty-ninth stipulation: "the lawyer has one of the following acts, by the judicial administrative department of a city with districts or municipalities directly under the central government, the District People's government to stop practicing for more than six months to one year's punishment, can be fined up to fifty thousand yuan; have the illegal income, the confiscation of illegal income; if the circumstances are serious, his lawyer's practice certificate shall be revoked by the judicial administrative department of the province, autonomous region, or municipality directly under the central government; constitutes a crime, shall be investigated for criminal responsibility according to law:...... (four) intentionally provide false evidence or threatening, luring others to provide false evidence, prejudice the other party's lawful obtaining of evidence." The criminal law is the law on the protection of other laws and regulations, not for others. Should the lawyer perjury behavior generally handled by the "Bar Association", industry self-regulation organizations, only serious acts of perjury was incorporated into the scope of criminal responsibility. Therefore, do not consider the difference between the verdict evidence and evidential materials, general evidence and key evidence, without exception, all the acts of perjury by criminal law, in violation of the principle of necessity.

Three, article 306th of the criminal law is not conducive to the protection of law and the rights of the accused
Human rights are the people as a society, in order to meet the needs of existence and development should enjoy the most basic rights. It is expressed as a value system. The basic value of human rights is the highest goal in the process of formulating and revising constitution, that the human survival and the development requirements, ideas and look forward to. The British scholar Milne the seven rights as a minimum the universal moral right human rights, rights of the seven is the right to life, the right to fair treatment, get help right, without dictatorial interference freedom, the negative meaning of honest, polite and right right right by taking care of children. (21) "due to human disturbance is so urgent and widely, can see, people seldom can single handedly DOSOMETHINPREVIOUSLYUNRELEASED. The only effective way is through government and voluntary organizations ";" by helping human rights that each in distress shall have the right to get help, no matter who he is "(22). The four amendment to the Constitution by constitutional change history is democracy rule of Law -- human rights -- have a confirmed history. (23) the constitution of 2004 fourth revisions in the thirty-third paragraph third joined "the state respects and safeguards human rights" rules, the state respects and safeguards human rights obligations. Respect means to accept the constraint; security includes both the negative and not as a guarantee, including active as a guarantee. Article 306th of the criminal law is the criminal law does not accept the restriction of performance, also does not provide positive and negative security, but not conducive to the protection of defendants and lawyers for human rights.
(a) article 306th of the criminal law is not conducive to the protection of human rights lawyer
Article 306th of the criminal law human rights violations of the lawyer first performance is the occupation of revenge. First of all, the procuratorial organs lawyer perjury investigation organ is often for the same lawyer agent instead of the public security organ. The lawyer originally and procuratorial organs at both sides of equal status, but now let the lawyers to the prosecution of criminal prosecution object. This undoubtedly makes the procuratorial organ is not only the athletes and coaches when, both due justice was illegal. As happened in Anhui Chaohu revitalization of song lawyer perjury case, prosecutors accused Lingxiao pine is the prosecutor Ling Xiaosong agent of corruption in the. (24) Secondly, startup time is not "the fact that a crime or criminal suspects" (the provisions of the eighty-third criminal procedure law on the condition of placing a case on file) but "doubt" or "may be" the facts of the crime or the criminal suspect. Practice often appear in court and the prosecution lawyer debate the day before, second days on suspicion of crime of perjury and was placed on file for investigation of suspected, because the prosecution lawyer may tempt a witness to give false testimony. Finally, the imputation principle is the presumption of guilt, as long as the witness testimony is not consistent before and after, to the prosecution case, the prosecution will most probably it did not actually happen that there will be a party in a judicial organ, apparently, not false, then, false can only be the lawyer. Such as occurred in Anhui in 2004 the Wang Hongzhu case (25), Wang Hongzhu acting case has not yet ended by the prosecution for alleged perjury detention, detention period than were arrested, although the National Lawyers Association and Anhui lawyers to help but failed, was sentenced to 1 and a half years. Wang Hongzhu is a crime is not in the scope of discussion, but the whole case is undoubtedly the procuratorial organs on the results. In this series of illegal process, lawyers are usually deprived of personal freedom, danger of torture to extract confessions; spirit in a highly nervous state, to bear the social public opinion to the risk of negative evaluation; while the property is also in danger.
The second representation is to pay no heed to the lawyer's occupation. In 1996 the lawyers law thirty-second stipulation: "lawyers in the practice activities of the personal rights are not violated." Thirtieth the provisions of the second paragraph: "or a defender, his right of debate or defense shall be protected in accordance with law." Lawyer law revised in 2007, not only the continuation of the provisions on the lawyer's rights of the person shall not be violated and lawyers to defend the right protected by the law, and further provides that "lawyers in the courtroom, the agent shall be immune from legal defense opinions". Provisions on the lawyer occupation immunity scope of our country's lawyers still narrow, even so, respect for and protection of several occupation of immunity of lawyer is not only the judicial organ, mentioned in the court, lawyers in custody, is one of them. Such acts seriously interferes with the lawyer's occupation activity, more is a violation of the law of human rights.
The third representation is the liability imposed on the lawyers witness body, increased the burden of lawyers. The provisions of the criminal law of the basic principle of suiting punishment to crime, penalty according to the requirements. The witness is generally rational independent independent consciousness of people, make the testimony is his personal behavior. Only a very strong force can affect the change of their own will, like the threat. So the temptation is not the direct cause of perjury, lure will not affect its independent will. And the 306th will be the responsibility and the duty lawyer confused, objectively increased the lawyer's responsibility, no doubt also violated the law of human rights.
The all China Lawyers Association has 23 lawyer perjury case analysis shows that, among the 11 suspected cases of lawyer acquitted or withdrawing, the 6 win of the guilty verdict, 1 are exempted from criminal punishment, 5 have not yet closed, 50% above the rate of miscarriage of justice. (26) and as long as it is suspected of perjury lawyer, lawyer detained, arrested, acquitted after a few for state compensation. Such as Qianjiang City, Hubei Province, Chutian lawyer Wang Wanxiong, on suspicion of "lawyer perjury" prosecution, a trial of its innocence, two sentenced 1 years in prison. After the appeal, the Supreme Court of Hubei province in 2004 the final judgment acquit Wang Wanxiong. (27) in the appeal, the appeal of the long journey, the physiological and psychological test one can imagine.
(two) article 306th of the criminal law is not conducive to the protection of the rights of the accused
The lawyer's right is extended the right to counsel, the purpose is to ensure the exercise of the right to counsel is the. It is especially by defense attorney, was accused of other rights can realize. In this sense, the defenders can not be isolated from the party split, closely related to the right of the two. (28) as mentioned earlier, article 306th of the criminal law in criminal defense rate, reduce the enthusiasm of lawyers in the criminal proceedings, the accused can not get help from a lawyer, equivalent to deprive them of their rights to defense, which further influence the realization of other rights of the accused, such as the right to life, personal liberty, property right. In criminal proceedings, the accused is facing the judicial organs of the state are strong, and the result of the litigation will determine their property rights, freedom right and even the right to life of the acquisition or loss, can be said that the criminal defense is for the life and the defence of freedom of occupation, so maintenance is obtained with professional knowledge and the status of independent counsel will contribute to the legitimate rights and interests of defendants, one of which is the core value of criminal defense. Its function is "expansion of client behavior ability, give the principal member of the surgery, which can transcend time and space constraints, and overcome the shortcomings in its knowledge, ability, experience, more deeply involved in the litigation"; on the other hand, is to "make up the client behavior ability, because the principal amount of the lack of legal knowledge, do not experience as a lawyer, and thus can not correctly use legal safeguard their legitimate rights and interests, and lawyers just has this advantage" (29). The lawyer occupation risk equal to life and freedom. If the lawyer's own legitimate rights and interests are difficult to guarantee, so the accused person's legitimate rights and interests can not be achieved. Practice has proved, in order to avoid the risk of article 306th of the criminal law, many lawyers gave up law to his right of investigation and evidence collection, (30) and provide only the prosecution evidence for cross examination. Give up the right of investigation and evidence collection means lawyers in litigation can only passive defense and lost the initiative in the attack of opportunity, to find the accused guilty evidence unfavorable. But in recent years the miscarriages of justice occurred frequently weakening and criminal defense function relationship. (31) from the She Xianglin case, Zhao Zuohai case, in violation of the human rights case is remarkable.

Four, article 306th of the criminal law to abolish the positioning and lawyers
As can be seen from article 306th of the criminal law, the problem mainly manifests in three aspects: one is the positioning of the lawyer set itself contains unclear, discrimination caused by excessive fortification; two is because the "lure" and "guide" and other neutral word there is cross lead to the legal limit is not clear, and damage to the people the provisions of article 125th of the constitution right, namely the law may be because semantic too wide a range of "accident" unconstitutional; three is the ambiguity of legislation itself is not conducive to the protection of law and the rights of the accused. Then, from the macro view, article 306th of the criminal law in the legal rights configuration heavily toward the judicial power, right and power loss of balance.
(a) article 306th of the criminal law and abolishment
"If a country have real freedom, Touchstone is one of its attitude towards those guilty people, for the people of the world not shame and defenders of the. In most authoritarian countries, stand on one's own defense lawyers did not exist. Indeed, one of the obvious sign of autocratic oppression free is the government began the persecution of lawyer." (32) article 306th of the criminal law is our country ignore rights lawyer mark, which belongs to the direct discrimination of lawyers. (33) in the normative perspective, a "good" system of law, shall have the capability to self improve, update, correction, rehabilitation, this marks the level of health. (34) in the contemporary, the health is mainly take the constitution as the core of the legal system of the basic rights of constitution implementation and the lower the "betrayal" correction mechanism and correction ability. Article 306th of the criminal law in violation of the constitutional principle of equality, the law of discrimination, does not conform to Article 125th of the constitution "the accused has the right to defence" provisions of the specification requirements, is not conducive to the protection of law and the rights of the accused, in violation of the provisions of article fifth of the constitution, should be amended by the legislature.
Of course, the lawyer for the defendant's rights, is the existence of illegal possible. Invalid confirmation of article 306th of the criminal law does not mean to the illegal acts of the lawyers law free from outside. From abroad situation, the duty crime of law can be divided into two kinds: sell the principal's interests of crime and the crime of obstruction of justice. In fact, in order to ensure the normal operation of the judicial system, so the court can accurately identify the facts of the case based on real evidence, and then make a fair judgment, whether civil law countries or the common law countries have clearly defined anyone bears to the court to provide real evidence of deliberate violation of obligations, the obligation of the people according to the crime punishment, but the subject of perjury crime is general subject, and no lawyers as special subject to. For the illegal acts of lawyers, does not constitute a crime, in accordance with the relevant provisions of punishment can make the "Lawyers Law"; constitute a crime, be treated as a general subject, make corresponding criminal penalties. As for the specific arrangement of the system, is another major issue.
(two) the lawyers in modern society (35)
Webb said: "the lawyer in the connection part of state institutions and civil society, plays the rule of law and order 'safety valve' role." The establishment of the defense system to combat and control is just based on such a principle, its philosophical basis is the law of the unity of opposites. The law of the unity of opposites is the fundamental law is the law of contradiction, the Marx dialectical materialism. It reveals the source of things, dynamic and substantive content. The internal process and phenomenon of all things which consists of two interrelated and mutually exclusive, the two aspects of both unity and struggle, promote the movement and development of things. Marx thought that, contradiction is to reflect the basic philosophy of unity and opposition between internal or things of objective things and their relations. Human established control, argue the two judicial functions in the process of the development of human society, but also has been in a contradictory unity of opposites between interdependent and struggle. The focus of criminal procedure is the rivalry. As a Japanese scholars said, only to let the judges heard "the voice", also want to see "the right light". The establishment of the relativity of defense system, because it can make the judge to hear different voices, its core value is the public authority containment and protection of private rights. Equality of both sides, is beneficial to both sides to clash in the burden of proof, evidence, and the facts of the case and the law applicable to debate the quality dispute, is conducive to the court to verify the truth. "The confrontation between the two sides in the same in a mutual conflict of mutual exclusion, connected mutually, with one side, the contradiction itself in terms of maturity transformation, on the basis of resolve." (36) opposite result is abandoning the negative factors, and achieve the unity or consensus based on facts and evidence.
Agent (Defense) system and combining the occupation law home produced lawyer and lawyer system. While the emergence and development of the lawyer system to further promote the development of the defense system, perfect and professional. No lawyer system, defense system because of its lack of professionalism and not with the complaint right formed confrontation that cease to exist except in name. "A serious and responsible, enthusiastic defense is the last line of the last bastion of freedom -- is the resistance in a threatening manner of government to bully its people. Defense counsel's task is for the government to supervise and challenge "," to protect those who be isolated and helpless and powerless people's legitimate rights and interests." (37) therefore, lawyer and lawyer system is traditionally by state officials and personal portfolio of criminal procedure pattern has brought a new power -- social forces independent. Lawyers involved, the glorious rebirth of the system of criminal defense, the defendant's rights from a security, status has been changed fundamentally, and led to further strengthen the democratic trend of criminal procedure. Therefore, this is not to say that the law is the embodiment of justice, but the lawyer is to ensure the equality of the prosecution and the defense, safeguard the legitimate rights and interests of the accused, there must be public power constraints; this is not to say that the law is good, but some defects of lawyers is modern society must tolerate evil "". It is in this sense, many countries have stipulated the lawyers in the practice activities of the personal rights are not violated and appeared in court defense, agents will not be investigated by law, namely the lawyer enjoys immunity of occupation. Only in this way, the lawyer can truly become the bridge and link between the state and the individual communication procedure.
　　
Notes and references
A professional criminal defense lawyer professional and determines the criminal defense lawyer who is mainly composed of a play, so in practice the subject of the crime of this crime is a lawyer. Draft amendments to the criminal code initially will subject the setting for lawyers, but had a heated debate, the subject of crime correction for "the defender, agent ad litem".
In 2000, the National People's Congress proposed the "Cancel" led by Zhang Yan lawyers of the people's Republic of China Criminal Law "stipulates that the 306th" bill. In 2001, the NPC Standing Committee Zhang Yan to reply, not satisfied, in 2002 once again put forward the "recommended the abolition of article 306th of the criminal law" proposal. In 2010 March, the National People's Congress Qin Xiyan again raised the 306th proposals.
The papers related to the influential Long Zongzhi: "Li Zhuangan law analysis -- Evidence from the main perspective", "law" in 2010 second period; Sun Wanhuai: "see false evidence, that" hinder witnessing the defender from the Li Zhuang case, "law" in 2010 fourth period; Fan Zhongxin: "the legal and ethical reflection" Li Zhuangan, Chinese elections and governance network, http: / / www.chinaelections.org/newsinfo.asp? August 10th newsid=1755332010 access.
The non statutory offenses, because this paper mainly discusses the lawyer acting as a defender in a criminal case, to facilitate the presentation, so that the lawyer's perjury. "The accused has the right to defence" on the right of access to lawyers, this is for countries to the Constitution and the international human rights conventions.
Chen Xingliang: the "breakthrough" research -- from the case of Zhang Yaoxi lure the behavior of crime of, "Tribune" in 2004 fifth.
The "high risk and low rate of criminal defense lawyer defense faces six problems", Tencent.com, http: / / news.qq.com/a/20080106 / 002513.htm, August 10, 2010.
And (29) Cheng Tao: "research" procedural rights of defence lawyer, Chinese People's Public Security University press, 2006 edition, page 283rd, fifth pages.
Zhou Wei: "return on prohibiting discrimination", "modern law" in 2006 fifth.
"[Japan] Miyazawa Junyi:" the Japanese Constitution Interpretation to ", Ashibe Nobuki, Dong Fanyu, Chinese democratic legal press 1990 edition, page 178th.
I am [Austria] Manfred Novak: '"International Covenant on Civil and political rights' commentary", Sun Shiyan, Bi Xiaoqing, life, study, New York 2008 edition, page 622nd.
⑾, [method] Pierre Leroux: "the equality", translated by Wang Yundao, the commercial press 1988 edition, twenty-eighth pages, twenty-first pages.
Let a (34): "Bai Bin dilemma and the constitution of Criminal Law -- the answer of normative constitution from the perspective of Xu Ting case", "law" in 2009 fourth.
And this problem, the author will discuss in third parts.
In 1980, "Interim Regulations" law first stipulation: "lawyers are legal workers of the country, its mission is to state organs, enterprises and institutions, social organizations, people's communes and citizens to provide legal aid, in order to ensure the correct implementation of the law, safeguard the legitimate rights and interests of country, collective interests and citizens."
In 1996 the "Lawyers Law" the second stipulation: "as mentioned in this Law refers to the lawyer, has acquired a lawyer's practice certificate in accordance with the law, and provide legal services to the public."
In [America] Christina Akudas: "a criminal defense lawyer duty", Jiang Lihua, Yang Cheng editor: "American criminal defense", Law Press, 2001 edition, page twenty-second.
Cai Dunming: and "criminal procedural law theory", Taipei five southern publishing company in 1993 edition, page ninety-eighth.
Said a series of case occurred in recent years, such as the Du Peiwu case, Yu Xianglin case and Zhao Zuohai case, have the judicial personnel falsify evidence and threatened witnesses change testimony or perjury case.
Shout: "sun Wanhuai from Li Zhuang case advocate false evidence, prejudice to testify crime", "law" in 2010 fourth.
(21) (22) [UK]A.J.M. Milne: "human rights and human diversity -- the philosophy of human rights", Chinese encyclopedia press 1995 edition, page 171st, pp. 165-166.
(23) Yan Hailiang: "the principle of human rights: implications, and implementation constraints --" the state respects and safeguards human rights clause interpretation of "", "" Jinling law review in the spring of 2009 vol..
(24) Wu Weimin: "lawyer convicted, fog", "law and life" in 2002 second.
(25) Wang Wuji, Xiao Zhou: "Huaibei lawyer perjury" fall into dilemma, people.com.cn, http://www.people.com.cn / GB / paper83/12534 / 1127101.html, October 14, 2010.
(26) "the lawyer called for the abolition of" lawyer perjury "lists three reasons", Chinese court net, http://www.chinacourt.org / public / detail.php? October 14th id=1636282010 access,
(27) Han Fudong: "a successful defense of Mongolian and flexion on the rise " lawyer perjury "is expected to cancel", chinanews.com, http: / / www.chinanews.com.cn / N / 2004-04-27 / 26 / 430350.html, October 14, 2010.
(28) Wang Jiancheng, Yang Xiong: "reflection" defense lawyer and client relationship, "China law" in 2004 tenth.
(30) the famous criminal defense lawyer Tian Wenchang accepts reporter when the interview said that his lawyer's perjury lawyer not evidence, only for the existing problem and the understanding of the law. See "attention lawyer perjury -- an interview with the National Lawyers Association of criminal defense committee director Tian Wenchang", NetEase News Center, http: / / news.sina.com.cn/c / 2004-11-03 / 10414126280s.shtml, September 28, 2010. The lawyer Yang Kuangsheng in accepting the "Southern People Weekly" interview, said: "the investigation and collection of evidence, we give up. To guard against the risk, I think for the testimony of witness, as far as possible not to investigate and collect evidence, objection would apply for witnesses to testify in court." But the practice has been a lot of lawyer's criticism. Such Wei Jiang: "if the exchange law", Yuan Yulai and Deng Yujiao: "why should I fierce criticism strong lawyers? ", see Chen Youxi academic network, http: / / wq.zfw]xt.com / newLawyerSite / BlogShow.aspx? ItemTypeID=14763043-95bc-4824-9f02-9bf0010d25e7itemID=60fb450a-2766-446d-a788-9dae00c1f02fuser=104202010 year September 28th visit.
(31) Chen Yunsheng scholars on the basis of analyzing 20 shocked the whole country criminal case, think one of the reasons why the case there is contempt for lawyers. See Chen Yunsheng: "our criminal misjudgment perspective -- Taking 20 shocked the whole country criminal case for sample analysis", "China law" in 2007 third.
(32) (37) Alan Dershowitz: "the best defense", translated by Tang Jiaodong, Law Press 1994 edition, page 482nd.
(33) direct discrimination is in essence the same or similar circumstances, due to the specific group or individual rights because the difference reason prohibited by law and has been or could be detrimental or preferential treatment than others.
(35) a lawyer the positioning problems thanks to Professor Tong Ju way as "lawyers in the China role" speech, thanks to Professor tong.
(36) Wang Shunyi: "plea against the" China procuratorial press, 2003 edition, page 313rd.

[author], the East China University of politics and law students.
[source] "politics and law" in 2011 second.
Update date:2011-6-18