According to the provisions of the current Criminal Procedure Law, applications for withdrawal of investigators, prosecutors, judges, clerks, translators and expert witnesses can only be made by the parties concerned and their legal representatives. In the new criminal procedure law, the right of "defenders and agents ad litem can request withdrawal and reconsideration withdrawal" has been added, which makes the right of defenders to request judicial personnel to withdraw more clear.
The status of lawyers in the investigation process is determined as defenders, and the right of defense is also increased accordingly.
Defining a lawyer who provides legal assistance to criminal suspects in the investigation stage as a defender is not only a change of name, but more importantly, the new criminal procedure law adds two rights for lawyers to reflect their status as defenders in the investigation stage:
1. In the investigation stage, defense lawyers can learn from the investigation organ about the charges charged by the criminal suspect and the relevant situation of the case, while in the current criminal procedure law, lawyers can only learn from the criminal suspect about the relevant situation of the case in the investigation stage, and can only learn from the investigation organ about the alleged charges. This provision obviously expands the lawyer's right to know the case in the process of investigation, but in practice, it is inevitable that there will be disputes between the defender and the investigator about the informed content, and in extreme cases, there may be fierce conflicts between the investigator and the defender, and this conflict may become a "sensitive event" because there is no neutral third party ruling.
2, according to the understanding of the situation put forward opinions. According to the new criminal procedure law, before the investigation of a case is completed, if the defense lawyer makes a request, the investigation organ shall listen to the lawyer's opinion, and if the defense lawyer makes a written opinion, it shall attach a volume. Of course, this can also be regarded as an obvious progress, after all, it has increased the space for lawyers to defend the entity during the investigation. However, due to the fact that the defender can't read the papers during the investigation, the investigation and the defense have asymmetric grasp of the case information, and the opinions put forward are relatively weak.
The change of the right to meet eventually further restricted the lawyer's right to meet.
The new criminal procedure law fully absorbs the provisions of Article 33 of the Lawyers Law, but it is obviously different from the Lawyers Law.
1, meeting time. In the investigation stage, the time for a criminal suspect to hire a lawyer is advanced from "after the first interrogation" in the current criminal procedure law to "from the date of the first interrogation", and the new criminal procedure law also cancels the restriction that a criminal suspect involved in a state secret case can only hire a lawyer with the approval of the investigation organ. Completely absorbed the provisions of the lawyer law.
2. Meeting procedures. The new Criminal Procedure Law has absorbed Article 33 of the Lawyers Law, stipulating that "when a lawyer meets, he can produce his lawyer's practice certificate, certificate of law firm, power of attorney or official letter of legal aid" (three certificates).
3. Meeting procedures. The provision that lawyers are not allowed to be monitored when meeting criminal suspects and defendants cancels the provision that the investigation organ can send personnel to be present at the investigation stage according to the situation in the current criminal procedure law. For general cases, the lawyer's meeting should be directly submitted to the detention center and must be arranged within 48 hours at the latest. To some extent, this provision solves the problem that lawyers must be arranged by the case-handling organ during the investigation stage, but the 48-hour grace period in the detention center may bring new problems in practice. Moreover, once "forty-eight hours" becomes the norm, it will directly affect the overall meeting effect in the three stages of investigation, review, prosecution and trial.
4. Scope of the meeting. Different from the Lawyers Law, the new Criminal Procedure Law cancels the restriction that lawyers should obtain the consent of the investigation organ when meeting cases involving state secrets, but increases the restriction that "defense lawyers should obtain the consent of the investigation organ when meeting detainees during investigation". Therefore, in fact, compared with the current Criminal Procedure Law and Lawyers Law, the scope for lawyers to meet with detainees during investigation has been expanded. That is, the lawyer's right to meet is obviously reduced compared with the current legal provisions.
The problem of marking papers by defense lawyers is expected to be completely solved, but the restoration of file transfer doctrine may damage the results of court trial reform.
1. Linking with the Lawyers Law, it is determined that defense lawyers can consult, extract and copy case files from the date of examination and prosecution, and the provision that lawyers' marking is limited to litigation documents and technical appraisal materials in the current criminal procedure law is cancelled.
2. Absorb lawyers' right to apply for favorable evidence that has not been submitted, which has been established in judicial interpretation. That is, "if the defender believes that the lightest evidence materials collected by the public security organs and people's procuratorates to prove the innocence of criminal suspects and defendants have not been submitted, he may apply to the people's procuratorates and people's courts for retrieval."
3. File transfer. According to the new criminal procedure law, when the procuratorial organ files a public prosecution, it will transfer the case files to the people's court, which can completely solve the problem of lawyers' marking. But there may also be some negative effects. The principle of file transfer is a necessary condition under the inquisitorial trial mode of 1979 Criminal Procedure Law. After the judges comprehensively read the papers, they already have the concept of judging without trial, which will inevitably lead to the interruption of trial activities and the collapse of the trial reform of prosecution and defense confrontation that has been worked hard for more than ten years.
The change of investigation power: the lawyer's right to provide evidence during the investigation is clarified, and the lawyer's obligation to submit is increased.
The new criminal procedure law increases the right of defenders to collect innocent evidence in the investigation stage, that is, they can collect three kinds of evidence: the suspect is no longer at the scene of the crime, has not reached the ability of criminal responsibility, and belongs to a mental patient who is not criminally responsible according to law. However, the defender must promptly inform the public security organ and the people's procuratorate of the above-mentioned evidence collected.
On the one hand, this provision makes up for the gaps in the current law about whether lawyers can collect evidence during investigation and the specific scope of collecting evidence. However, the obligation to submit evidence may bring new risks to lawyers: on the one hand, will lawyers fail to fulfill their obligation to submit evidence become a new excuse for being sued? On the other hand, after the favorable evidence is informed to the investigation organ, how can lawyers prevent the risk of loss?
Relief procedures are better than nothing.
1, remedies for infringement of lawyers' rights
The new criminal procedure law has increased the relief procedure when lawyers' litigation rights are infringed, that is, lawyers have the right to appeal or accuse to the people's procuratorate at the same level or at the next higher level. Unfortunately, this relief procedure is relatively rough. It only stipulates that the people's procuratorate can review the complaint or accusation, and if the situation is true, it will notify the relevant authorities to correct it, but it does not stipulate the specific review procedure, time limit, the effectiveness of the Notice of Correction and the appeal reconsideration procedure if the result is not satisfied.
2. Remedies for the infringement of the rights of criminal suspects and defendants.
When the rights of criminal suspects and defendants are infringed, such as improper personal coercive measures, improper property coercive measures, corruption and other criminal acts, defenders can appeal or accuse the misconduct organs. If the complaint cannot be handled in time, the defender may appeal to the people's procuratorate at the same level or at the next higher level. Similarly, this kind of relief procedure is also lack of maneuverability, which may not be implemented in practice, especially to complain about infringement to the infringement organ. This kind of relief can only hope for the justice of the judicial organs.
Lawyers are suspected of 306 special prosecution procedure, which is expected to reduce the risk of lawyers to some extent.
In the process of participating in criminal proceedings, lawyers are suspected of destroying evidence, forging evidence and obstructing testimony. The new criminal procedure law stipulates special procedures.
1, investigation avoidance. The case shall be handled by an investigation organ other than the investigation organ where the defender undertakes the case.
2. Special notification procedure. If the defender is a lawyer, he shall notify the law firm where he belongs or the lawyers association to which he belongs. This provision has absorbed the existing provisions of the Lawyers Law.
The new criminal procedure law does not adopt the other two suggestions put forward by lawyers: 1, and the prosecution procedure should be started after the people's court confirms that the evidence involved is perjury according to law; 2. Before the initiation of the prosecution procedure, the Lawyers Association shall conduct an investigation on lawyers' professional ethics. Nevertheless, this change can reduce the risk of malicious prosecution of lawyers to some extent.
Increased the participation space of lawyers in the compulsory measures procedure.
1. The new criminal complaint has absorbed the system of listening to the opinions of defense lawyers set up in the Provisions of the Ministry of Public Security of the Supreme People's Procuratorate on Examining and Interrogating Criminal Suspects in the Arrest Stage, giving defense lawyers the right to make suggestions for approving arrest in the procuratorate. That is, the people's procuratorate can listen to the opinions of defense lawyers in the process of approving the arrest, and defense lawyers should listen to their opinions if required. However, because the new criminal procedure law does not stipulate the obligation to inform the procuratorate that the case has entered the arrest procedure, it may weaken the operability of this right in practice.
2. The new criminal procedure law has increased the power of the people's procuratorate to continue to review the detention after arrest. Accordingly, the right of defense lawyers to suggest that the procuratorate continue to review the necessity of detention has naturally formed in practice.
3. Refine the procedures for defenders to apply for changing compulsory measures, and stipulate that the people's procuratorate and the people's court shall make a decision within three days after receiving the application, and explain the reasons if they disagree.
Lawyers' participation in death penalty review procedures, such as law, cannot change the reality that it is difficult for them to participate.
The new criminal procedure law has absorbed the provisions of the judicial interpretation of the Supreme Court. During the review of the death penalty, the defender may submit written opinions to the Supreme Court and take the initiative to seek opinions in person. Similarly, because there is no procedure of the Supreme Court before the obligation of informing, it is still difficult to solve the difficulty that the defender cannot get in touch with the competent judge of the Supreme Court, and this procedure is still difficult to implement.
The standardization of pre-trial meeting system can effectively reduce contradictions and conflicts in the trial.
In the new criminal procedure law, a pre-trial meeting system has been added: the judge calls the prosecution and the defense, the victim and other participants in the proceedings in front of the court to listen to opinions on trial procedures such as withdrawal, witness appearing in court and exclusion of illegal evidence, so as to prepare for the trial. This is a very meaningful measure, which can understand the requirements of all parties on procedural issues in the trial, greatly reduce unnecessary confrontation and conflict caused by procedural issues in the trial, and improve the efficiency of the trial.
The appearance of witnesses, expert witnesses and expert witnesses challenges the defense lawyers' questioning skills in court.
The new criminal procedure law defines the conditions for witnesses to appear in court, and stipulates the systems of compulsory witness appearance, witness protection, compensation for witnesses to appear in court, and the consequences of expert witnesses' failure to appear in court. Although these systems can not achieve the effect of direct verbal evidence, they will certainly greatly increase the opportunities for witnesses, experts and expert witnesses to appear in court. The effect of these verbal evidences depends on the skill of asking questions in court. However, in the past criminal defense practice, because witnesses and experts rarely appear in court, criminal defense lawyers generally lack the training and cultivation of court questioning skills, which is obviously a challenge to the new defense practice in the future.