one
Under the influence of traditional ideas, all walks of life do not fully understand the work of lawyers and hold prejudices.
China is a bureaucratic country in history, with great executive power, and judicial power is subordinate to the executive power. In general, when people encounter disputes, they always expect a "master" to uphold justice. Therefore, upholding justice has become something that officials have the final say. The biggest feature of government-run is that it pays more attention to entity than procedure. Master Qingtian tried the case according to his own intention, and there was no procedural restriction to supervise judicial justice. In ancient China, litigation institutions always adopted the principle of authority, and the rights of defendants were ignored, so they were not allowed to enjoy the right of defense and litigants were not allowed to participate in litigation. Second, "the value of litigant itself lies in pure economic interests". It is precisely because of the above reasons that, traditionally, the legal profession has been neglected in China, and it is an excluded profession. It is customary to dismiss lawyers as litigators or teachers with poor image.
With the establishment of modern legal system, especially the deepening of China's reform, the socialist market economy needs a perfect legal environment. The main purpose of market economy is fair competition, and the role of law is to maintain fairness. Therefore, the market economy is an economy ruled by law. Governing the country according to law simply means that the governance of the country must be based on the law and everything should be handled in accordance with the provisions of laws and regulations. The rule of law requires that both the public rights represented by the state and the private rights represented by individuals should be exercised in accordance with the provisions of the law, so checks and balances are particularly important. In the modern national system, checks and balances are put forward as an important means to guarantee democracy. In a big way, China's people's congress system has effectively supervised state power; From a small point of view, in some cases involving specific issues, lawyer's agency or defense has become a key factor to effectively advocate and supervise all parties to participate in social or economic activities according to law, and it is an effective force for social checks and balances.
It can be seen that the lawyer's job is to assist the parties to carry out activities in accordance with the legal track. Taking criminal cases as an example, lawyers' participation in criminal proceedings is mainly to protect the defendant's right to defense, which is a right endowed by the Constitution. Because the defendant is ignorant of the law, lawyers as defenders can fully safeguard the rights and interests of the defendant. In fact, it is the requirement of the law to prevent innocent people from being investigated for crimes and minor crimes from being severely sentenced, which is the guarantee of modern laws for people's basic rights. Therefore, the role of lawyers in the process of criminal defense is not to excuse crimes, but to ensure that defendants fully exercise their right to defense according to law and safeguard the law instead of trampling on it. However, due to the influence of traditional thinking, there is a concept that lawyers are to help the bad guys take advantage of the loopholes in the law and speak for the bad guys. Undeniably, there are very few lawyers who may take advantage of legal loopholes and turn black and white, but the vast majority of lawyers are engaged in the work of maintaining the law under the provisions of the Lawyers Law and the Practice Rules.
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The work of lawyers pays more attention to the fairness of procedures, and it is easy for some procuratorial departments to think that lawyers hinder the smooth trial of cases, thus causing doubts and misunderstandings about lawyers.
The justice of law includes the justice of result and the justice of procedure. In the judicial process, especially in the litigation process, there is no result justice without procedural justice. For this contradiction, the unanimous view is that procedural justice is more important than result justice. Because, if the fairness of the procedure cannot be realized, the fairness of the result is out of the question, and only talking about the fairness of the result without paying attention to the fairness of the procedure may also lead to unjust, false and wrong cases. Procedural justice is the macro justice of law; However, the fairness of the result is the micro-fairness of specific cases, so the procedural fairness is far more important than the fairness of the result. If procedural justice can be realized, the justice of the result will be guaranteed, and procedural justice will further urge government officials to act according to law and not abuse their powers. This is also the more important significance of what we usually call the "procedure" of lawyer business.
Based on the above reasons, lawyers not only help the parties to seek justice in the outcome, but also play a balancing role in the judicial process. Especially in the process of criminal defense, lawyers can find out the doubtful points of evidence and the illegal points of law enforcement personnel through defense, all in order to protect the defendant's right to defense and safeguard the fair implementation of the law. After the promulgation of China's newly revised Criminal Procedure Law, some principles in criminal trial have been revised, such as "no one can be convicted without court trial" and "evidence can only be confirmed after cross-examination". These principles are the focus of lawyers' work. Of course, compared with the old criminal trial principles, these aspects undoubtedly increase the difficulty of the procuratorial department. Due to the different angles between lawyers and procuratorial departments in the process of large-scale criminal trials, when lawyers raise objections according to law, they are often regarded as setting obstacles in a targeted manner by the prosecution, or even as colluding with the defendant. It is for this reason that lawyers' professional rights and interests are violated, mostly in the course of litigation.
Therefore, a correct understanding of the significance of procedural justice plays an important role in coordinating the work of procuratorial departments and lawyers. Although the division of labor between the prosecution and the defense is different in the trial of the case, the goal is the same. Only by understanding this point can the procuratorial department eliminate unnecessary doubts and misunderstandings, thus effectively reducing the occurrence of infringement cases.
three
As an indispensable part of the criminal procedure structure, lawyer is also the weakest link.
Although the revised Criminal Procedure Law has been revised and increased in improving the role and rights of lawyers in criminal proceedings, there are still defects in balancing the litigation rights of both prosecution and defense.
1. On the right of lawyers to meet criminal suspects
According to Article 36 of China's Criminal Procedure Law, the purpose of setting up a lawyer to advance right to interfere is to ensure that criminal suspects can get legal help from lawyers in time, so that defendants and their defense lawyers can get enough time and means to prepare their defense. However, while making this provision, the Criminal Procedure Law also stipulates that "the investigation organ may send personnel to be present according to the circumstances of the case". In judicial practice, some departments abuse this right, and even limit the time and frequency of lawyers' meetings, regardless of the circumstances of the case, which is different from the basic principle of the United Nations on the role of lawyers that "all people arrested, detained or under residential surveillance should have sufficient opportunities, time and convenient conditions". No delay, no eavesdropping, no prosecution, complete confidentiality, lawyers can come to negotiate with them, and such negotiations can be carried out within the range of sight and hearing of law enforcement officers. This makes lawyers and plaintiffs extremely unbalanced in this litigation right, which makes it difficult to realize the original intention of legislation in judicial practice.
2. On lawyers' right to read papers
Article 36 of China's Criminal Procedure Law stipulates lawyers' right to read papers, but in the stage of examination and prosecution, lawyers can only consult, extract and copy the litigation documents and technical appraisal materials of this case, while in the stage of trial, lawyers can consult, extract and copy the criminal facts accused in this case, which makes it difficult for lawyers to play a good role. Our country has absorbed some factors of foreign adversary system in criminal trial mode, and implemented the adversarial trial mode under the command of the court, which has intensified the adversarial function of lawyers and prosecutors. However, because lawyers can't see all the case materials in the stages of review, prosecution and trial, the rights enjoyed by lawyers are obviously unbalanced with those enjoyed by accusers, and the strong defense made by lawyers depends on the basis of all the materials.
To this end, the Basic Principles on the Role of Lawyers in the United Nations stipulates that the competent authorities have the obligation to ensure that lawyers have enough time to access relevant materials, files and documents in their possession or management, so that lawyers can provide effective legal aid to their clients, and should provide such access opportunities at an appropriate time as soon as possible.
3. Lawyers' right to investigate and collect evidence
Article 37 of China's Criminal Procedure Law stipulates the right of lawyers to investigate and collect evidence, but this right is not available in the criminal investigation stage. At the same time, the exercise of lawyers' rights depends on the consent of the units and individuals under investigation, or applying for assistance from procuratorial organs or judicial organs, which is often difficult to implement in judicial practice. According to the current criminal trial mode in China, this increases the responsibility of lawyers, who provide defense for defendants. Mainly depends on the lawyer's grasp of the evidence. Lawyers enter ahead of time and have no right to investigate and collect evidence. In the stage of examination and prosecution, they can't see all the files, so it is difficult to achieve a relative balance with the accuser, and it is even more difficult to form a strong confrontation with the accuser in court.
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Lawyers need to constantly improve their quality and strengthen their construction.
Although the whole team of lawyers has been recognized and respected by the society, the quality of lawyers is uneven due to the rapid development and uneven development. In the process of handling cases, a few lawyers are mercenary, violating professional ethics and legal provisions, helping criminals reverse black and white, falsifying evidence, and even directly participating in illegal activities. Such lawyers are also one of the reasons why the whole team of lawyers is misunderstood. For such a small number of lawyers, of course, it is not within the scope of the protection of lawyers' rights, but from such lawyers, we can see that the improvement of lawyers' quality is an important aspect to prevent cases of infringement of lawyers' rights.
five
The protection system for lawyers' practice is not perfect.
At present, there are some provisions on the protection of lawyers' rights in China's laws and regulations, but most of them are general and lack maneuverability, especially for the particularity of the lawyer industry. Lawyers will inevitably encounter some problems in their practice, and the imperfect protection measures provide opportunities for lawyers' rights and interests to be violated.