In the process of litigation, the concepts of defender and agent ad litem are easily confused, but they are completely different concepts with different rights and obligations. So what is the difference between a defender and an agent ad litem? Let's take a closer look with me.
1. Different objects: the former is set up for criminal suspects, defendants in public prosecution cases and defendants in private prosecution cases, while the latter is set up for private prosecutors, victims and parties involved in incidental civil litigation.
2. Defenders and agents ad litem enter criminal proceedings in different ways. In addition to entrustment, the former can enter the proceedings through the designation of the court, and the agent can enter the proceedings under the entrustment of the principal.
3. The status of defense lawyer is completely different from that of attorney. The former has an independent status and is not influenced by the will of criminal suspects, nor is it interfered by individual groups such as courts and procuratorates. The latter must operate within the scope authorized by the principal according to law, because the agent's behavior not only has the same effect as the principal's behavior, but also bears all the legal effects produced by the principal.
Comparison between defense and agency
(1) similarity
Both the defender and the agent participate in the litigation in order to protect the interests of the client, and they have no direct legal interest in the consequences of handling the case. They have many similarities in litigation rights and obligations and some procedures.
(2) Difference
1, depending on. The basis for criminal defenders to participate in criminal proceedings is the authorization of criminal suspects and defendants or the legal designation of the court, while the participation of criminal agents can only be authorized by the parties and their legal representatives.
2. The litigation status is different. The defender has an independent litigation status, defends in his own name and is not bound by the defendant.
However, the agent does not have an independent litigation status, but is attached to the principal and engages in activities according to the will of the principal.
3. The litigation tasks are different. Criminal defense assumes the defense function, that is, refuting the complaint of the procuratorial organ and proving that the criminal suspect or defendant is innocent or guilty, and criminal responsibility should be reduced or exempted; The duty of the agent is to safeguard the legitimate rights and interests of the client.
4, the scope of application is different. The litigation interests of the two objects are just the opposite, and criminal defense is applicable to criminal suspects, defendants and defendants in public prosecution cases; Criminal agency is applicable to victims, private prosecutors and incidental civil parties in public prosecution cases.
5. The content of rights is different. Criminal defenders enjoy the rights of meeting, correspondence, investigation and evidence collection as stipulated by law.
Some rights are not even enjoyed by criminal suspects and defendants; The rights enjoyed by a criminal agent are granted by the client.
Yes, and not beyond the scope of authority of the client.
6. The scope of authority is different. The rights enjoyed by defenders are given by law, and there is no question of the defendant's authorization. Its authorization is only to let defenders participate in litigation. Whether an agent participates in litigation and within what scope of authority, it must be authorized to decide.
7. The name of the activity is different. Defenders use their own names in investigation and evidence collection, submission of defense statements and other activities, and criminal agents use the names of clients in litigation activities.
Knowledge supplement: private prosecution and public prosecution
Private prosecution is a criminal case with clear facts and minor circumstances, and the victim brings a lawsuit to the court; Public prosecution is a lawsuit initiated by the procuratorate to the court.
The right of prosecution in a case of private prosecution is exercised by the injured citizen himself, and the injured citizen has the right to decide whether to bring a lawsuit against the offender; Cases of private prosecution are directly accepted and tried by the people's courts without investigation and prosecution procedures; Unless otherwise provided by law, the people's court may mediate in cases of private prosecution; The private prosecutor may reconcile with the defendant or withdraw the private prosecution before the judgment of the case is announced; The defendant may file a counterclaim during the proceedings.
Private prosecution is a supplement to public prosecution and a way to investigate the criminal responsibility of the parties. The Criminal Procedure Law stipulates that the crimes of insulting, slandering, maltreating and violently interfering with the freedom of marriage are generally cases of private prosecution as long as there are no significant consequences, while the crime of embezzlement is absolutely private prosecution.
In addition, criminal cases with clear facts and minor circumstances are also private prosecutions, such as intentional injury, abandonment, production and sale of fake and inferior commodities, illegal invasion of houses, infringement of freedom of communication, infringement of intellectual property rights, etc., except those that seriously endanger social order and national interests. In the case that the defendant may be sentenced to fixed-term imprisonment of not more than three years as stipulated in Chapter IV and Chapter V of the Specific Provisions of the Criminal Law, the procuratorate will generally initiate public prosecution in the name of the state for cases that endanger public security and social order.
summary
The legal titles in the above proceedings are explained in detail. Defenders and agents ad litem have different responsibilities and different scope of authority in the course of litigation. Only by recognizing the differences between the two can we choose more appropriate litigation means and better safeguard our legitimate rights and interests.
Please consult Nujiang criminal defense lawyer for relevant help.