The Influence of Article 306 of Criminal Law on Lawyers' Defense

Since the promulgation of Article 306 of the Criminal Law for more than ten years, many lawyers have suffered greatly from this law, and the number of criminal cases has increased year by year, while the number of criminal cases in which lawyers participate in defense has decreased year by year. Why? The lawyer's heart is cold Lawyers' withdrawal from criminal defense is bound to make unjust, false and misjudged cases emerge one after another. \x0d\ 1。 "Article 306" destroyed the balance between the prosecution and the defense. \x0d\ The design of prosecution and defense litigation is intended to make both parties in a balanced state under the condition of reciprocity, and then investigate and deal with the facts of the case. "Article 306" makes lawyers afraid to investigate and collect evidence, and can only look for flaws and loopholes from the prosecution's evidence. If the lawyer participates in the investigation, the defendant changes his statement, or the witness changes his testimony, the prosecution may arrest the defense lawyer according to Article 306. The prosecution is both an athlete and a referee, which completely undermines the principle of reciprocity between prosecution and defense. \x0d\ Second, "Article 306" has dampened the enthusiasm of lawyers in criminal defense. \x0d\ It is human nature to seek advantages and avoid disadvantages. As long as lawyers have a bowl of rice to eat, they are not willing to touch the "Article 306" mine. After the promulgation of Article 306, it is an indisputable fact that the defense of criminal cases is declining year by year, which is probably unexpected by legislators at first. Criminal cases have low fees and are in danger of imprisonment at any time. Who is as smart as a lawyer and who wants to do such a thankless thing? \x0d\ III。 "Article 306" deprives criminal suspects of their right to defense in disguise. \x0d\ A lawyer may be the only savior of a criminal suspect in prison. Article 306 does not encourage lawyers, resulting in the vast majority of criminal suspects can not get the help and defense of lawyers. The criminal suspect's right to entrust a lawyer to defend is ineffective, in fact, indirectly depriving the criminal suspect of his right to defense. Without the defense of lawyers, the fate of criminal suspects can only be left to morality and conscience. Reality tells us that morality and conscience are unreliable. In order to pursue the detection rate and handling performance, all kinds of extorting confessions by torture have exceeded the imagination of Chinese people. \x0d\ IV。 "Article 306" is an obstacle to the development of the lawyer system. \x0d\ China's lawyer system has just started, like a seedling swaying in the wind and rain. The destruction of "Article 306" to the lawyer system has been obvious to all for so many years. According to the incomplete statistics of the National Lawyers Association, from 1997 to 20 1 1 * *, more than 40 lawyers were charged with "Article 306" for prosecution, and more than 30 lawyers were sentenced. \x0d\ 5。 Section 306 opened the door for revenge lawyers. \x0d\ In the case of perjury by four lawyers in Beihai, none of the cases in which lawyers participated in the defense were closed, the facts of the case have not been ascertained, and the real suspects have not been identified by the court. According to the principle of presumption of innocence, even a criminal suspect can't be convicted, but the public security organ will arrest the lawyer who participated in the defense first, which is ridiculous. How can you conclude that the lawyer is wrong before the case is decided? Maybe the public security organ made a mistake? \x0d\ VI。 Article 306 is a serious violation of human rights. \x0d\ It is the basic human right of every citizen to enjoy the right of defense when being sued by public power. As we all know, the vast majority of citizens have limited legal knowledge, let alone how to protect their legitimate rights and interests after losing their freedom. There is no provision for the right to silence in our country, and the basic right to entrust a lawyer to defend is lost because the lawyer is afraid or unwilling to participate in the defense. \x0d\ VII。 "Article 306" is the destruction of the rule of law civilization. \x0d\ A friend of mine said, "There can be neither democracy nor the rule of law." The rule of law is the loudest word in news, newspapers and officials' mouths every day, and "Article 306" is precisely the provision that discredits the rule of law civilization and is a violent provision. \x0d\ VIII。 Article 306 violates the basic principles of the United Nations on the role of lawyers. \x0d\ Article 16 of the United Nations Basic Principles on the Role of Lawyers stipulates: "Governments should ensure that lawyers can perform all their duties without intimidation, obstruction or improper interference". Article 17 stipulates: "If the safety of lawyers is threatened due to the performance of their duties, the authorities shall give them full protection". Investigation and evidence collection is the basic right of lawyers to handle cases, but now investigation and evidence collection has become a dangerous zone for lawyers in China. If they are not careful, they will be detained for violating Article 306. Therefore, "Article 306" actually deprives lawyers of the right to investigate and collect evidence. \x0d\ IX。 "Article 306" shames the new criminal law. \x0d\ The new criminal law embodies the openness of the rule of law. In order to be in line with international standards, lawyers can intervene in advance to provide legal services for criminal suspects in the investigation stage, which seems to be progress. But then "Section 306" was put in chains. Before "Article 306", I didn't know that any lawyer was prosecuted for participating in criminal defense, but after "Article 306", one lawyer after another was jailed for participating in criminal defense. If a lawyer dares to challenge the law and instigate a witness to commit perjury, he can be convicted and punished with Article 307 of the Criminal Law. Why do you want to list a crime of perjury for lawyers? \ x0d \ X. "Article 306" is a continuation of traditional thinking. \x0d\ According to the idea of "Article 306", anyone detained by the public security organ is guilty and must make a guilty confession. If you don't confess, there are naturally countless ways for you to confess. After pleading guilty, the lawyer intervened. If the confession is retracted, it must be the fault of the lawyer, inducing the criminal suspect to retract the confession or inducing the witness to change the testimony, which hinders the public security from solving the case. So we tried every means to get suspects and witnesses to accuse lawyers of inducing confessions, and then put lawyers in prison, and the public security won a great victory. This is a continuation of traditional thinking. \x0d\ Appendix: Paragraph 1 of Article 306 of the Criminal Law: Defenders and agents ad litem are guilty of destroying or falsifying evidence and obstructing testimony, that is, in criminal proceedings, defenders and agents ad litem who destroy or falsify evidence, help the parties to destroy or falsify evidence, threaten or induce witnesses to change their testimony on facts or commit perjury shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention; If the circumstances are serious, they shall be sentenced to fixed-term imprisonment of not less than three years but not more than seven years.