Is it necessary to have a lawyer present in our country to plead guilty and admit punishment?
In our country, it is not necessary for a lawyer to be present to plead guilty and admit punishment, but it is best for a lawyer to be present. Article 174 of the Criminal Procedure Law stipulates that if a criminal suspect voluntarily pleads guilty and agrees to apply sentencing suggestions and procedures, he shall sign a confession and repentance in the presence of a defender or a lawyer on duty.
In the pilot practice, there are disputes about whether it is necessary for every criminal suspect to sign a statement and whether there should be a guardian or lawyer on duty. The view that it is not necessary for all lawyers to attend is mainly based on the following two reasons;
First, objectively, there are not enough defense lawyers or duty lawyers, so it is impossible to guarantee that every criminal suspect who pleads guilty and admits punishment has a defender or duty lawyer. In practice, the number of practicing lawyers in some places, especially remote counties and districts, is relatively small. Even in areas with a relatively large number of lawyers, the number of lawyers who specialize in or are willing to engage in criminal proceedings is very limited, and the number cannot meet the requirement that every criminal suspect has a lawyer.
Second, subjectively, it is not necessary to think that every criminal suspect has a defender or a lawyer on duty. Cases of confession and punishment, especially those applying summary procedure, are all misdemeanor cases with clear facts and sufficient evidence. Among them, drunken dangerous driving crimes, which account for a high proportion of summary procedures, are all seized on the spot, and the suspects have no excuse to commit crimes. After empirical investigation, most of the suspects themselves think that they don't need legal help, and there is no need to hire a lawyer. It violates the principle of seeking truth from facts and the basic legal spirit of party autonomy. For the above reasons, in some pilot areas, if a criminal suspect claims that he does not need legal help and has a written statement, he will no longer be assigned a defense lawyer or a lawyer on duty.
On the surface, the above viewpoints and practices have certain realistic rationality. However, in-depth study of the legislative intent of this article and the basic requirements of the leniency system will reveal that there are two risks in the above viewpoint:
First, the case-handling organ may try its best to make the criminal suspect write a statement that he doesn't need legal help, thus greatly omitting the task of assigning a defense lawyer or a lawyer on duty, and only providing legal help to a few criminal suspects who strongly demand legal help, that is, turning not providing legal help into the norm and turning providing legal help into an example, resulting in a situation in which judicial practice completely deviates from the original intention of legislation. The so-called "a levee of a thousand miles collapses in an ant's nest", the law stipulates that legal help should be provided, so it becomes a mere formality.
Second, in the absence of a defense lawyer or a lawyer on duty, the case-handling organ may use the situation of asymmetric information and unequal status to force the criminal suspect to plead guilty against his will through incomplete and insufficient information or other means.
In fact, China's lenient system of pleading guilty and admitting punishment is a limited tolerance of the law, and to some extent, it is the education and protection of criminal suspects and criminals, so we need to pay attention to relevant laws and regulations.