I. An overview of lawyers' practice rights in China
According to the Criminal Procedure Law and relevant judicial interpretations, lawyers' practice rights mainly include the right to meet, the right to put forward opinions, the right to read papers, the right to investigate and collect evidence and the right to complain. Ensuring that lawyers exercise their right to practice according to law will play an important role in promoting the construction of law enforcement ability of political and legal organs and improving the level of law enforcement and the quality of handling cases. However, due to legislative and practical reasons, lawyers' right to practice in criminal proceedings has not been fully realized, especially there are still many problems in the protection of interview rights, investigation and evidence collection rights and marking rights.
(1) It is difficult to guarantee the right to meet
The lawyer's right to meet is an important part of the criminal suspect and defendant's right to get lawyer's help. It is of great significance for the detainees to fully exercise the lawyer's right to meet. However, in practice, it is difficult to guarantee the lawyer's right to meet, which is mainly manifested in the low meeting rate and low meeting quality of lawyers in the investigation stage. The main reasons are as follows: First, the law enforcement concept is outdated, and the old law enforcement concept of "attaching importance to cracking down on protection" and "attaching importance to entity over procedure" still exists to varying degrees. For example, as stipulated in the Criminal Procedure Law, investigators should inform the criminal suspect of the right to hire a lawyer to provide assistance after interrogating him for the first time or taking compulsory measures against him. However, at present, the investigation organs generally use the right notice to inform, which leads to the criminal suspect not understanding or even realizing the right to hire a lawyer, thus making it difficult for the lawyer to start the procedure of exercising the right to meet. Second, legislation is too principled, which leads to law enforcement deviation. Because the regulations are relatively principled, there is no clear definition of "major and complicated cases" and "involving state secrets", which leads to vague understanding in practice and even refuses to arrange meetings on the grounds of involving state secrets. Third, the quality of the meeting was not high due to the on-site monitoring of investigators. Paragraph 2 of Article 96 of the Criminal Procedure Law stipulates that "when a lawyer meets a criminal suspect in custody, the investigation organ may send personnel to be present according to the circumstances and needs of the case". Investigators were present to monitor the meeting between lawyers and criminal suspects, which caused great psychological pressure on both sides of the meeting. The criminal suspect did not dare to truthfully reflect the situation, and the lawyer could not fully understand the case, resulting in low quality of the meeting.
(2) It is difficult to realize the right of investigation and evidence collection
The principle of equality between prosecution and defense and the objective obligation of prosecutors are important principles of modern justice. For example, Article 43 of the Criminal Procedure Law stipulates that "judges, prosecutors and investigators must collect all kinds of evidence that can prove the guilt or innocence of criminal suspects and defendants and the seriousness of the crime according to legal procedures". However, due to the need to accuse a crime, the investigation organ often fails to fully fulfill its objective obligations in practice. Generally, it does not pay attention to collecting evidence of the innocence or light crime of the suspect in the investigation stage, and only pays attention to showing the evidence of the defendant's guilt or heavy crime to the court during the trial. Therefore, in practice, defense lawyers are generally reluctant to apply to the investigation and control organs to collect evidence, but lawyers are subject to many restrictions in conducting their own research. First, it comes from the constraints of procedural legislation. Article 37 of the Criminal Procedure Law and related regulations stipulate that lawyers who collect evidence from the victims or their close relatives or witnesses provided by the victims shall also obtain the permission of the procuratorial organs or judicial organs with the consent of the above-mentioned personnel. Second, the restriction from substantive legislation. Article 316 of the Criminal Law stipulates that lawyers who destroy evidence, forge evidence or obstruct testimony in criminal proceedings should bear criminal responsibility. Because the Criminal Procedure Law is relatively principled in the program design of lawyers' investigation and evidence collection, it does not specifically regulate the procedures and requirements of lawyers' investigation and evidence collection. Therefore, there is no quantitative standard for lawyers to do what is legal and what is illegal in the process of evidence collection, which leads to the same behavior in practice, some of them practice according to law, while others violate the criminal law.
(3) The operation effect of the right to read papers is not ideal
Because the current criminal procedure law in China is too authoritarian, lawyers do not play a great role in criminal proceedings. Specifically, on the issue of the right to read papers, it emphasizes the advantages of the investigation and control organs too much and restricts lawyers' understanding of the case before the court. According to Article 36 of the Criminal Procedure Law, the criminal procedure law adopts the principle of authority at the stage of examination and prosecution, and the defense lawyer can only consult, extract and copy the procedural litigation documents and technical appraisal materials of the case, and the evidence and materials of the case can only be consulted at the trial stage. However, in the trial stage, China's criminal procedure law adopts the principle of litigant, which is quite different from the authority principle in the investigation and prosecution stage. The law does not stipulate the scope of "main evidence" attached to the public prosecution organ, which leads to the phenomenon of "ambush trial" in practice from time to time.
second, the reform way of protecting lawyers' rights
The system of protecting lawyers' practice rights is an important part of the judicial litigation system. Judging from the situation of countries all over the world, the system of safeguarding lawyers' practice rights is compatible with the judicial litigation system.
(1) On the right of lawyers to meet
China's current criminal procedure adopts a mixed litigation mode, that is, the pre-trial procedure emphasizes authoritarianism, the police and prosecutors occupy an absolute dominant position in the litigation, and the parties enjoy less rights. After entering the trial stage, some characteristics of the adversarial litigation mode are transplanted and the defense trial mode is implemented. Correspondingly, there are many restrictions on the lawyer's right to meet in the pre-trial procedure. In the author's opinion, in line with the criminal procedure system, China should not stipulate that lawyers have the right to be present when the police and prosecutors interrogate criminal suspects, but should reduce the restrictions on lawyers to exercise the right to meet, and make it clear that lawyers can meet criminal suspects as needed, and the investigation organ has neither the obligation to permit nor the obligation to monitor the meeting process.
(II) On lawyers' right to investigate and collect evidence
In my opinion, China has initially established an adversarial criminal litigation system. Although this system still bears a lot of brand of authoritarianism and the influence of the tradition of authoritarianism, judicial democratization has become a world trend, and the litigation systems of common law system and civil law system also have the trend of learning from each other. Our country can consider giving lawyers immunity from criminal responsibility in criminal proceedings in order to enhance the antagonism and balance between the prosecution and the defense. In the specific system, lawyers can be given the status of defenders in the investigation stage, and they can have the right to investigate without coercion; At the stage of examination, prosecution and trial, lawyers can have compulsory investigation power, and when lawyers apply to prosecutors and judges for evidence, prosecutors and judges have the obligation to investigate.
(3) On the right of lawyers to read papers
In my opinion, the purpose of giving lawyers the right to read papers in criminal proceedings is to effectively solve the problem of "ambush trial", so that both the prosecution and the defense can have a comprehensive understanding of the case before the trial, make full preparations for the trial, and ensure the quality and efficiency of the criminal trial. In view of the fact that China has initially established an adversarial trial mode with pre-trial authoritarianism as the leading litigation mode, it is feasible to learn from the evidence display system of common law countries in order to solve the problem of lawyers' difficulty in exercising their right to read papers and make lawyers fully understand the case before trial.
third, the reform conception of China's lawyer's practice rights protection system
Through the above analysis, the general development direction of China's lawyer's practice rights protection system can be clearly defined. However, it is impossible to completely copy the foreign ready-made system in the specific design, and it should be carefully considered from the national conditions of our country under the principle of fairness and efficiency.
(1) Defining the litigation status of lawyers in the investigation stage
Because of the narrow right of lawyers to help in the investigation stage and the lack of adequate safeguards, the role of lawyers has not been fully brought into play. Therefore, from the perspective of equality between prosecution and defense, lawyers should be given litigation status to ensure that lawyers can fully exercise their rights and achieve the purpose of protecting the human rights of criminal suspects. Improve the system of investigators' presence when lawyers meet with criminal suspects. The author thinks that it is necessary for the lawyer to be present when he exercises the right to meet the crime, but reasonable procedures should be designed to ensure that the investigation organ can control the suspect and improve the quality and effect of the meeting. Accordingly, the right to be present of investigation organs should be restricted in the Criminal Procedure Law. That is, the presence of the investigation organ is only monitoring but not monitoring, and it cannot involve the conversation between lawyers and criminal suspects, let alone limit the conversation.
(II) Establishing the system of lawyers' immunity from criminal defense
The system of immunity from criminal responsibility refers to the criminal legal system in which lawyers engage in criminal defense, provide legal advice to the attorney or make statements, defenses and speeches in court without being investigated by law. This is the core system of lawyer's professional identity protection. In criminal proceedings, the police and prosecutors represent the country and have a strict identity protection system, while lawyers represent the interests of the parties and have no identity advantage. If there is no corresponding protection system, their role will inevitably be reduced. Therefore, a lawyer's criminal defense immunity system should be established.
(3) Establish the evidence display system.
Since the revision in 1996, China's Criminal Procedure Law has partially transplanted the litigation concept of adversary system in common law system, established relevant supporting systems, established adversary trial mode of adversary system, and strongly regulated the equality of defense in the trial stage. All these have prepared the ideological and institutional basis for the establishment of evidence display system in China. Corresponding to China's criminal procedure system, the evidence display system should be applied to the period from the prosecution to the trial of the first instance. It should be made clear that evidence must be displayed in accordance with the law, on an equal footing and in good faith, and it should be stipulated that, except for evidence involving state secrets and commercial secrets, evidence that has not been displayed shall not be presented in court and used as the basis for deciding a case.