One: On the right of lawyers to meet:
1. The meeting time is correct:
The Lawyers Law stipulates that from the date of the first interrogation or compulsory measures.
The Criminal Procedure Law stipulates that a criminal suspect shall be arrested after being interrogated for the first time by the investigation organ or from the date when compulsory measures are taken.
Conflict point: the lawyer law deleted the word "Hou" in criminal proceedings.
2. Procedures for the right to meet:
The Lawyers Law stipulates that no matter any case, it must be submitted for approval.
The Criminal Procedure Law stipulates that a lawyer meeting with a criminal suspect in custody in a case involving state secrets shall be approved by the investigation organ.
Conflict point: The Lawyers Law has changed the stipulation that cases involving "state secrets" must be approved in the Criminal Procedure Law.
3, the right to meet the state:
The Lawyers Law stipulates that when meeting with criminal suspects and defendants, they will not be monitored. Since monitoring is not allowed, investigators are certainly not allowed to be present.
According to the Criminal Procedure Law, when a lawyer meets a criminal suspect in custody, the investigation organ may send personnel to be present according to the circumstances and needs of the case.
Direct conflict point: the lawyer law breaks through the criminal procedure law and clearly stipulates the right not to be monitored during the meeting.
Implicit conflict point: The Lawyers Law denies the "right to be present" of the investigation organ.
Appendix Relevant laws and regulations:
Article 33 of the Lawyers Law stipulates that:
Since the criminal suspect is interrogated for the first time by the investigation organ or compulsory measures are taken, the entrusted lawyer has the right to meet the criminal suspect and defendant with the lawyer's practice certificate, law firm certificate, power of attorney or legal aid letter to learn about the relevant case.
Lawyers are not monitored when they meet criminal suspects and defendants.
Article 96 of the Criminal Procedure Law stipulates that:
A criminal suspect may hire a lawyer to provide him with legal advice, complaints and accusations after the first interrogation by the investigation organ or from the day when compulsory measures are taken. If the suspect is arrested, the lawyer hired can apply for bail pending trial. In cases involving state secrets, the criminal suspect's employment of a lawyer shall be approved by the investigation organ.
The entrusted lawyer has the right to know the charges charged by the criminal suspect from the investigation organ, to meet the criminal suspect in custody and to know the relevant information from the criminal suspect. When a lawyer meets a criminal suspect in custody, the investigation organ may send personnel to be present according to the circumstances and needs of the case. When a lawyer meets a criminal suspect in custody in a case involving state secrets, it shall be approved by the investigation organ.
Article 33 of the Criminal Procedure Law stipulates that:
The criminal suspect has the right to entrust a defender from the date when the case is transferred for examination and prosecution.
The people's procuratorate shall, within three days from the date of receiving the case materials transferred for examination and prosecution, inform the criminal suspect that he has the right to entrust a defender. The people's court shall, within three days from the date of accepting a case of private prosecution, inform the defendant that he has the right to entrust a defender.
Second, about the lawyer's right to read papers:
Conflict point: Regarding the scope of marking right, there is obvious contradiction between the Lawyers Law and the Criminal Procedure Law, and the scope stipulated in the Lawyers Law is far greater than that stipulated in the Criminal Procedure Law.
Relevant laws and regulations:
Article 34 of the Lawyers Law: The entrusted lawyer has the right to consult, extract and copy the litigation documents and files related to this case from the date of case review and prosecution. The entrusted lawyer has the right to consult, extract and copy all materials related to the case from the date when the people's court accepts the case.
Criminal Procedure Law Article 36 From the date when a people's procuratorate examines and prosecutes a case, a defense lawyer may consult, extract and copy the litigation documents and technical appraisal materials of the case, and may meet and correspond with the criminal suspect in custody.
Since the people's court accepted the case, the defense lawyer can consult, extract and copy the materials of the alleged criminal facts in this case, and can meet and correspond with the defendant in custody.
Three. On the conflict of lawyers' right to investigate and collect evidence:
1, direct conflict:
The Lawyers Law stipulates that lawyers do not need any approval to investigate and collect evidence, as long as they "hold a lawyer's practice license and a certificate from a law firm, they can investigate the situation related to undertaking legal affairs."
The Criminal Procedure Law stipulates that lawyers must "obtain the consent of witnesses or other relevant units and individuals" to witnesses and relevant units. When collecting evidence from the victim, a lawyer must "collect materials related to the case from the victim or his close relatives or witnesses provided by the victim with the permission of the people's procuratorate or the people's court."
2. Implicit conflict:
The Lawyers Law has no stage restrictions on lawyers' obtaining evidence after being entrusted, that is to say, lawyers can investigate and collect evidence after being entrusted by criminal suspects, spanning three stages: investigation, prosecution and trial.
The criminal procedure law has clear restrictions on lawyers' investigation and evidence collection after being examined and prosecuted. In the investigation stage, lawyers only have the right to "provide legal advice, represent complaints, accuse and apply for bail pending trial". No right to investigate and collect evidence. "
Appendix Relevant laws and regulations:
Lawyer Law Article 35 An entrusted lawyer may, according to the needs of the case, apply to the people's procuratorate or the people's court for collecting and obtaining evidence or to the people's court for notifying witnesses to testify in court.
If a lawyer investigates and collects evidence by himself, he may, with the lawyer's practice certificate and the certificate of the law firm, investigate the situation related to undertaking legal affairs with the relevant units or individuals.
Article 37 With the consent of witnesses or other relevant units and individuals, defense lawyers may collect materials related to the case from them, apply to the people's procuratorate or the people's court to collect and obtain evidence, or apply to the people's court to notify witnesses to testify in court.
With the permission of the people's procuratorate or the people's court, and with the consent of the victim or his close relatives or witnesses provided by the victim, the defense lawyer may collect materials related to the case from them.
Article 96 A criminal suspect may hire a lawyer to provide him with legal advice, represent him in complaints and accusations after the first interrogation by the investigation organ or from the date when compulsory measures are taken. If the suspect is arrested, the lawyer hired can apply for bail pending trial. In cases involving state secrets, the criminal suspect's employment of a lawyer shall be approved by the investigation organ.
The entrusted lawyer has the right to know the charges charged by the criminal suspect from the investigation organ, to meet the criminal suspect in custody and to know the relevant information from the criminal suspect. When a lawyer meets a criminal suspect in custody, the investigation organ may send personnel to be present according to the circumstances and needs of the case. When a lawyer meets a criminal suspect in custody in a case involving state secrets, it shall be approved by the investigation organ.