1. The concept of the crime of defenders and agents ad litem destroying or falsifying evidence and obstructing testimony (Article 306 of the Criminal Law) refers to the act of defenders and agents ad litem destroying or falsifying evidence in criminal proceedings, helping the parties to destroy or falsify evidence, threatening or inducing witnesses to change their testimony or committing perjury that is not conducive to the facts. Ii. Composition of this crime (I) Object Elements The object of this crime is the personal rights of citizens and the normal activities of judicial organs, and it is a complex object. This crime interferes with the normal activities of judicial organs, which refers to the criminal litigation activities of judicial organs. The civil litigation activities and administrative litigation activities of judicial organs cannot be the objective elements of this crime. Article 102 of the Civil Procedure Law of People's Republic of China (PRC) stipulates that the people's court may, according to the seriousness of the case, impose fines and detention on those who forge or destroy important evidence, hinder the people's court from hearing a case, or prevent witnesses from testifying by violence, threat or bribery, or instigate, bribe or coerce others to commit perjury; If a crime is constituted, criminal responsibility shall be investigated according to law. Article 49 of the Administrative Procedure Law of the People's Republic of China stipulates that: if a litigant participant or other personnel forges, conceals or destroys evidence, or instigates, bribes or coerces others to commit perjury, threatens or prevents witnesses from testifying, the people's court may, according to the seriousness of the case, admonish him, order him to make a statement of repentance, impose a fine of not more than l000 yuan, and detain him for not more than 15 days; If a crime is constituted, criminal responsibility shall be investigated according to law. Because criminal proceedings are different from civil and administrative proceedings in nature, the social harm caused by the same act of obstructing evidence is also different. A person who obstructs civil or administrative litigation cannot be directly punished as this crime. (2) Objective Elements This crime is objectively manifested as the act of destroying or forging evidence, helping the parties to destroy or forge evidence, threatening or inducing witnesses to change their testimony or perjury against the facts. The so-called evidence refers to the evidence mentioned in Article 42 of the Criminal Procedure Law, that is, all the facts that prove the true situation of the case. The parties refer to the parties mentioned in Item 1 of Article 82 of the Criminal Procedure Law, that is, the victims, private prosecutors, criminal suspects, defendants, plaintiffs and defendants in incidental civil actions. In this paper, it mainly refers to criminal suspects and criminal defendants. The so-called destruction of evidence refers to the destruction and destruction of evidence, including not only making the existing evidence completely disappear from the form, such as burning, tearing, soaking and discarding the evidence, but also making it lose or partially lose its probative power, such as smearing and scribbling the evidence, so that it cannot reflect the facts proved. The so-called forgery of evidence refers to fabricating and manufacturing evidence that does not actually exist or tampering, distorting, processing and sorting out existing evidence against the truth. It can be implemented independently, at the instigation of the parties concerned or jointly with the parties concerned, but it must be intentional. If it is not deliberately forged, even if false witness testimony or other evidence is provided in defense and agency activities, it cannot constitute this crime. The so-called helping the parties to destroy or falsify evidence refers to providing advice, material conditions and moral support for the parties on how to destroy or falsify evidence. However, if the parties do not intentionally destroy or falsify evidence, but the defenders or agents ad litem instigate or instigate the destruction or falsification of evidence, it cannot be regarded as an act of assistance, and we should directly deal with it by destroying or falsifying evidence. The so-called threat refers to threatening or intimidating witnesses by killing, injuring, destroying property, damaging reputation, revealing privacy, etc. So that they can provide false testimony or change the true testimony they provide. The so-called inducement refers to the use of money, property, women and other material interests or spiritual interests to lure and seduce witnesses to provide false testimony or change their testimony against the facts. The so-called changing testimony against facts means that witnesses change and deny that they have provided realistic testimony to the judicial organs in line with objective conditions. The so-called provision of perjury refers to the provision of false, untrue and inconsistent testimony to judicial organs, such as threatening or inducing people who know the true situation of the case to commit perjury; Or let people who don't know the real situation of the case testify in favor of the client and the client. The above-mentioned behaviors of defenders and agents ad litem must also occur in criminal proceedings to constitute this crime. If it doesn't happen in it, but before or after the criminal proceedings, even the above acts can't be punished as this crime. In criminal proceedings, it refers to the whole process of criminal proceedings, including filing, investigation, prosecution and trial, including first instance, second instance, retrial and execution. (III) Subject Elements The subject of this crime can only be the defender or agent ad litem of a criminal case. Other participants in criminal proceedings, as well as investigators, prosecutors and judges in criminal cases, cannot be the subject of this crime. The so-called defender refers to a person entrusted by a criminal suspect or defendant to exercise the right of defense according to law, that is, a lawyer; A person recommended by a people's organization or the unit where the criminal suspect or defendant belongs; Guardians, relatives and friends of criminal suspects and defendants. The so-called agent ad litem refers to the defendant in a public prosecution case and his legal representative or close relatives, the person entrusted by the private prosecutor and his legal representative in a private prosecution case to participate in the litigation on his behalf, and the person entrusted by the parties involved in an incidental civil litigation and their legal representatives to participate in the litigation on his behalf. (4) Subjective elements This crime has direct intention in the subjective aspect. The perpetrator's criminal motives may be protecting relatives and friends, seeking revenge for personal gain, greedy for money, etc., but different motives do not affect the establishment of this crime. Third, identify the boundary between this crime and non-crime. Irresponsibility, dereliction of duty or negligence in destroying evidence in the work of agents ad litem and defenders does not constitute this crime. Although it is an intentional crime, but the circumstances are obviously minor and the harm is not great, it should not be considered as a crime. 4. Whoever commits this crime 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. V. Legal and Judicial Interpretation [Criminal Law Provisions] Article 306 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 of 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. Witness testimony or other evidence provided, presented or quoted by defenders or agents ad litem is inaccurate, not intentionally forged, and does not belong to forged evidence. [Related Laws] Article 45 The people's courts, people's procuratorates and public security organs have the right to collect and obtain evidence from relevant units and individuals. The relevant units and individuals shall truthfully provide evidence. Evidence involving state secrets shall be kept confidential. Whoever forges, conceals or destroys evidence, and whoever the evidence belongs to, will be investigated by law. Article 47 The testimony of witnesses must be interrogated and cross-examined by the public prosecutor, the victim, the defendant and the defender in court, and the testimony of witnesses from all parties can be used as the basis for finalizing the case. If the court finds that a witness intentionally perjures or conceals criminal evidence, it shall deal with it according to law. Article 102 of the Civil Procedure Law If a litigant participant or other person commits one of the following acts, the people's court may impose a fine or detain him according to the seriousness of the case; If the case constitutes a crime, criminal responsibility shall be investigated according to law: (-) forging or destroying important evidence, which hinders the people's court from hearing the case; Article 82 of the Criminal Procedure Law The meanings of the following terms in this Law are: (2) "parties" refer to victims, private prosecutors, criminal suspects, defendants, plaintiffs and defendants in incidental civil actions; (3) "Legal representative" refers to the parents, adoptive parents and guardians of the client and the representatives of the organs and organizations responsible for protection; (4) "Participants in litigation" refers to the parties, legal representatives, agents ad litem, defenders, witnesses, expert witnesses and translators; "Agent ad litem" refers to the victim of a public prosecution case and his legal representative or near relative, the person entrusted by the private prosecutor and his legal representative in a private prosecution case to participate in the litigation on his behalf, and the person entrusted by the party involved in an incidental civil litigation and his legal representative to participate in the litigation on his behalf; (6) "Close relatives" refer to husbands, wives, fathers, mothers, sons, daughters, brothers and sisters. Article 45 of the Lawyers Law If a lawyer commits one of the following acts, the judicial administrative department of the people's government of a province, autonomous region or municipality directly under the Central Government shall revoke the lawyer's practice certificate; If the case constitutes a crime, criminal responsibility shall be investigated according to law: (1) divulging state secrets; (2) Offering bribes to judges, prosecutors, arbitrators and other relevant staff members, or instigating or inducing the parties to pay bribes; (3) Providing false evidence to conceal important facts, or threatening or inducing others to provide false evidence to conceal important facts. If a lawyer is punished for intentional crime, his lawyer's practice certificate shall be revoked.
Legal objectivity:
[Criminal Law Provisions] Article 306 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 of 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. Witness testimony or other evidence provided, presented or quoted by defenders or agents ad litem is inaccurate, not intentionally forged, and does not belong to forged evidence. [Related Laws] Article 45 The people's courts, people's procuratorates and public security organs have the right to collect and obtain evidence from relevant units and individuals. The relevant units and individuals shall truthfully provide evidence. Evidence involving state secrets shall be kept confidential. Whoever forges, conceals or destroys evidence, and whoever the evidence belongs to, will be investigated by law. Article 47 The testimony of witnesses must be interrogated and cross-examined by the public prosecutor, the victim, the defendant and the defender in court, and the testimony of witnesses from all parties can be used as the basis for finalizing the case. If the court finds that a witness intentionally perjures or conceals criminal evidence, it shall deal with it according to law. Article 102 of the Civil Procedure Law If a litigant participant or other person commits one of the following acts, the people's court may impose a fine or detain him according to the seriousness of the case; If the case constitutes a crime, criminal responsibility shall be investigated according to law: (-) forging or destroying important evidence, which hinders the people's court from hearing the case; Article 82 of the Criminal Procedure Law The meanings of the following terms in this Law are: (2) "parties" refer to victims, private prosecutors, criminal suspects, defendants, plaintiffs and defendants in incidental civil actions; (3) "Legal representative" refers to the parents, adoptive parents and guardians of the client and the representatives of the organs and organizations responsible for protection; (4) "Participants in litigation" refers to the parties, legal representatives, agents ad litem, defenders, witnesses, expert witnesses and translators; "Agent ad litem" refers to the victim of a public prosecution case and his legal representative or near relative, the person entrusted by the private prosecutor and his legal representative in a private prosecution case to participate in the litigation on his behalf, and the person entrusted by the party involved in an incidental civil litigation and his legal representative to participate in the litigation on his behalf; (6) "Close relatives" refer to husbands, wives, fathers, mothers, sons, daughters, brothers and sisters. Article 45 of the Lawyers Law If a lawyer commits one of the following acts, the judicial administrative department of the people's government of a province, autonomous region or municipality directly under the Central Government shall revoke the lawyer's practice certificate; If the case constitutes a crime, criminal responsibility shall be investigated according to law: (1) divulging state secrets; (2) Offering bribes to judges, prosecutors, arbitrators and other relevant staff members, or instigating or inducing the parties to pay bribes; (3) Providing false evidence to conceal important facts, or threatening or inducing others to provide false evidence to conceal important facts. If a lawyer is punished for intentional crime, his lawyer's practice certificate shall be revoked.