Problems that should be paid attention to when lawyers represent private prosecution cases

Guide for Lawyers in Handling Criminal Cases Chapter VIII Acting as an agent ad litem or defender of the parties to a private prosecution case Section 1 Acting as an agent ad litem of a private prosecutor Article 144 A lawyer may be entrusted by a private prosecutor and his legal representative to act as his agent ad litem. Before accepting the entrustment, it shall examine whether the case meets the statutory scope of private prosecution cases and the conditions for filing a case. Entrustment procedures shall be handled with reference to the provisions of Article 13 of this Law. Article 145 A lawyer shall help the private prosecutor analyze the case, determine the defendant and the competent court, investigate and understand the relevant facts and evidence, and write a criminal complaint on his behalf. The indictment shall include the following main contents: (1) the name, age, nationality, native place, birthplace, education level, occupation, work unit, address and other natural information of the private prosecutor and the defendant; (two) the facts of the defendant's crime, including the time, place, means and harmful consequences of the crime; (3) the defendant's criminal behavior; (4) Specific claims; (five) the name and time of service to the people's court; (6) The name and address of the witness; (7) The name, quantity and source of the evidence. If there are more than two defendants, a copy of the indictment shall be provided according to the number of defendants. Article 146 If a private prosecutor claims civil compensation at the same time, his attorney may assist him in making a criminal incidental civil complaint, stating the damage caused by the defendant's criminal behavior, the specific compensation claim and the calculation basis. An incidental civil litigation agency shall go through the corresponding entrustment procedures. Article 147 When a lawyer files a private prosecution, he shall bring the following materials and documents: (1) the identity certificate of the private prosecutor; (2) Criminal indictment; (3) Evidence materials and catalogues; (4) Power of attorney; (5) Letter of introduction from the law firm; (6) Lawyer's practice certificate. If an incidental civil action is filed at the same time, a criminal incidental civil complaint shall be submitted. If the civil part is prosecuted separately, an incidental civil complaint shall be submitted separately. Article 148 If the people's court requests the private prosecutor to supplement evidence or withdraw the private prosecution after examining the case of private prosecution, the lawyer shall assist the private prosecutor to supplement evidence or negotiate with the private prosecutor whether to withdraw the private prosecution. Article 149 If the people's court refuses to file a case of private prosecution, a lawyer may apply to the people's court for reconsideration on behalf of the private prosecutor. Article 150 If the people's court decides to hold a hearing, the lawyer shall make good preparations before the hearing. You can apply to the people's court for investigation and evidence collection according to law for evidence that you cannot obtain. Article 151 In a criminal case of private prosecution, if the defendant files a counterclaim, the attorney may accept the entrustment of the private prosecutor to act as his counterclaim defender, but he shall go through the corresponding entrustment procedures. Article 152 A lawyer shall inform the private prosecutor of the legal provisions on filing a case of private prosecution, so as to avoid the legal consequences of the private prosecutor's refusal to appear in court or his unauthorized withdrawal from court. If the private prosecutor is unable to entrust an attorney to appear in court for some reason, the attorney shall appear in court on time to perform his duties. Article 153 When hearing a case of private prosecution, a lawyer shall assist the private prosecutor to fully exercise his appeal function and use evidence to prove the accusation of the private prosecutor. Article 154 If summary procedure can be applied to a case of private prosecution according to law, a lawyer may, on behalf of the private prosecutor, request the people's court to apply summary procedure. If summary procedure is not applicable to a case of private prosecution according to law, a lawyer may, on behalf of the private prosecutor, object to the court's decision to apply summary procedure. Article 155 After the court debate on a case of private prosecution is over, a lawyer may participate in court mediation as entrusted by his client. Article 156 Before the court announces the judgment, the lawyer shall assist the private prosecutor in deciding whether to make a settlement with the defendant or withdraw the private prosecution. Article 157 Lawyers handling cases of private prosecution of second instance shall refer to the relevant provisions of this section. Section 2 Defending the Defendant in a Private Prosecution Case Article 158 A lawyer may be entrusted by the Defendant in a Private Prosecution Case to act as his defender, and the entrustment procedures shall be handled in accordance with the provisions of Article 13 of this Law. Article 159 As a defender of a defendant in a private prosecution case, a lawyer should pay attention to the following matters: (1) The defendant in a private prosecution case has the right to file a counterclaim; (2) If the private prosecutor fails to appear in court without justifiable reasons after two legal summonses, or withdraws from court without the permission of the court, the prosecution shall be dismissed; (3) Cases of private prosecution can be mediated; (4) The private prosecutor can reconcile with the defendant or withdraw the private prosecution. Article 160 The defendant in custody in a case of private prosecution, the defense lawyer may apply for bail pending trial on his behalf. For specific measures, please refer to the relevant provisions in Section 5 of Chapter III of this specification. Article 161 In cases of private prosecution of first instance, second instance and summary procedure, the activities of the defendant's defenders shall be carried out with reference to the relevant provisions of Chapters V, VI and X of this Law. Chapter IX Acting as an agent ad litem of the parties in an incidental civil action Section 1 Acting as an agent ad litem of the plaintiff in an incidental civil action Article 162 A lawyer may be entrusted by the victim in a public prosecution case, the private prosecutor in a private prosecution case and his legal representative to act as an agent ad litem in an incidental civil action. Persons who can authorize lawyers to bring incidental civil actions include victims (citizens, legal persons and other organizations) who have suffered material losses due to criminal acts, close relatives of deceased victims, and legal representatives of victims with no or limited capacity for conduct. Entrustment procedures shall be handled in accordance with the provisions of Article 13 of this Law. Article 163 Before accepting entrustment, a lawyer shall examine the following contents: (1) Whether criminal proceedings have been initiated as a prerequisite for initiating incidental civil actions; (2) Whether the defendant in the incidental civil action meets the statutory requirements (in addition to the criminal defendant, the defendant in the incidental civil action also includes other accomplices who have not been investigated for criminal responsibility, guardians of juvenile criminal defendants, heirs of criminals who have been executed, heirs of defendants who died before the end of the trial, and units and individuals who should bear civil liability for the criminal acts of criminal defendants according to law, etc.). ); (3) Whether the material loss of the victim is caused by the criminal behavior of the defendant; (four) after the criminal case is put on file, whether the time of filing the incidental civil action is before the judgment of first instance is announced. Article 164 After accepting the entrustment, a lawyer shall write an incidental civil complaint on behalf of the client, the basic contents of which include: (1) the natural situation of the plaintiff and defendant in the incidental civil action; (2) Specific claims; (3) Basic facts and reasons; (four) the name and time of service to the people's court; (5) Relevant evidential materials. Article 165 If the people's court decides not to file an incidental civil action, it may suggest the client to file another civil action. Article 166 Lawyers shall guide and assist clients in collecting evidence, conducting investigations and applying for expert appraisal. Article 167 When an incidental civil action is brought, the agent may suggest or assist the client to apply to the people's court for sealing up or distraining the defendant's property. Article 168 An attorney-in-law shall pay attention to and inform the client that if he refuses to appear in court without justifiable reasons after being summoned twice by the people's court, or withdraws from court without the permission of the court, he will automatically withdraw the lawsuit. Article 169 A lawyer shall enjoy the following rights in the course of trial: (1) Entrusted by the client, he may apply for the withdrawal of the members of the collegial panel, the clerk, the public prosecutor, the expert witnesses and the translators; (2) State the facts of the case; (3) presenting and reading their own evidence; (four) to apply to the court to inform our witnesses to testify in court; (five) with the permission of the presiding judge, ask questions to the defendant, witnesses and expert witnesses; (6) Objecting to the evidence of the other party; (seven) to raise objections to the improper questions of the other agent; (8) Express opinions on the agent. Article 170 A lawyer shall instruct his client to participate in mediation and make a mediation plan. Article 171 If the plaintiff refuses to accept the judgment or ruling of first instance that is incidental to a civil action, the lawyer shall assist him in appealing. Article 172 After an incidental civil action enters the procedure of second instance, a lawyer may accept the entrustment of the plaintiff in the incidental civil action to represent the case of second instance. Refer to the provisions of Article 13 of this Standard for specific entrustment procedures. Article 173 Where a lawyer participates in an incidental civil action of second instance as an agent, it shall be handled with reference to the relevant provisions of the procedure of first instance. Section 2 Acting as an agent ad litem of the defendant in an incidental civil action Article 174 A lawyer may be entrusted by the defendant in an incidental civil action and his legal representative to act as an agent ad litem in the proceedings of first instance and second instance. Entrustment procedures shall be handled in accordance with the provisions of Article 13 of this Law. Article 175 A defense lawyer of a defendant in a criminal lawsuit may also be entrusted to act as an agent ad litem of a defendant in an incidental civil lawsuit. Article 176 A lawyer shall represent the defendant in writing the defense, investigating and collecting evidence, applying for expert appraisal, participating in court hearings, giving evidence and cross-examining, debating and expressing opinions. Its litigation rights are the same as those of the plaintiff's lawyer in an incidental civil action. Article 177 If the defendant in an incidental civil action refuses to accept the part of the incidental civil action in the judgment of first instance, the attorney shall assist him in bringing a civil action.