First, the current legal status of lawyers in China
The so-called identity refers to the position of a person or a group in social relations. Legal status is the status in legal relations. The legal status of defense lawyers, embodied in the criminal procedure law, is the rights and obligations that defense lawyers enjoy and perform in accordance with the criminal procedure law. At present, China's defense lawyers are in the following three positions in criminal proceedings:
(1) Independent status. In criminal proceedings, the independent status of defense lawyers is as follows: performing their duties according to law, independently presenting their own defense opinions according to facts and laws, free from illegal interference by other organs, groups and individuals, and free from the influence of the opinions of criminal suspects and defendants. If a criminal suspect does not truthfully state the case, he may also refuse to defend him. Defense lawyers are neither the "spokesmen" of criminal suspects and defendants, nor the foil of judicial organs. In the litigation, both the defense lawyer and the defendant are the defense parties, performing the defense function according to law, interweaving with the accusation function and the trial function, and promoting criminal proceedings.
(2) Dependent state. The subordinate position of defense lawyers means that they are attached to criminal suspects and defendants and provide legal help to them. Mainly in three aspects: first, lawyers participate in criminal proceedings and perform defense duties according to the entrustment of the defendant. Even the defense lawyer appointed by the people's court for the defendant to participate in criminal proceedings is generally recognized by the court. If the defendant refuses to entrust a lawyer to defend him because of the case, and there are real reasons, the people's court shall replace other lawyers to defend him. Lawyers can't do anything that is not conducive to the legitimate rights and interests of the defendant in defense activities, otherwise it is dereliction of duty. Second, if the defendant thinks that the defense lawyer is useless and can't protect his legitimate rights and interests, he has the right to refuse the lawyer to continue to defend him, and the lawyer can't participate in criminal proceedings, so there is no independence at all. Third, the right of appeal is also the exclusive right of the defendant. Lawyers can only help the defendant to exercise the right of appeal, and there is no independent right of appeal. The lawyer's whole defense activity is to help the defendant exercise his right to defense, which determines that the defense lawyer has a certain dependence on the defendant.
(3) privileged status. Among the defenders stipulated by law, lawyers are the most important and capable of protecting the legitimate rights and interests of criminal suspects and defendants. Compared with other defenders, the privileged position of defense lawyers is mainly manifested in the following two aspects: on the one hand, lawyers are professional legal workers who have passed strict examinations and obtained practice licenses, and have rich legal knowledge and experience in handling cases and are familiar with defense business. At the same time, lawyers must abide by strict practice discipline and have lofty professional ethics in order to successfully complete the defense business as a whole. On the other hand, the law gives lawyers more rights than other defenders, such as the right to be guaranteed when performing their duties according to law, the right to consult files, the right to meet and communicate, the right to investigate and collect evidence, the right to apply for changing compulsory measures against criminal suspects and defendants, the right to obtain judicial documents, the right to produce evidence, the right to ask, the right to debate, the right to accuse and the right to refuse. Among them, the right to investigate and collect evidence is a unique right of defense lawyers, which other defenders cannot enjoy. In addition, compared with other defenders, lawyers' right to defense is rarely restricted. For example, defense lawyers can meet and correspond with criminal suspects in custody from the day when the people's procuratorate examines and prosecutes the case. Other defenders must obtain permission from the people's procuratorate before they can meet and correspond with the criminal suspect in custody.
Second, the legal status of defense lawyers has not been consolidated.
Although defense lawyers are in three higher legal positions in criminal proceedings, they still encounter many problems, obstacles and difficulties in criminal proceedings, especially their independent and privileged legal positions have not been consolidated, which are highlighted in the following three aspects:
(1) is hard to satisfy. Article 96 of the Criminal Procedure Law stipulates that the entrusted lawyer can "meet with the criminal suspect in custody" during the investigation stage, and Article 1 1 ⑤ of the Provisions on Several Issues Concerning the Implementation of the Criminal Procedure Law issued by the Supreme People's Court, the Supreme People's Procuratorate, the Ministry of Public Security, the Ministry of National Security, the Ministry of Justice and the Legislative Affairs Commission of the National People's Congress Standing Committee (NPCSC) (hereinafter referred to as "the provisions of the two houses, three departments and one committee") but in practice, Even if formal approval is not required, the case-handling organ will not hold a meeting without arrangement. In fact, it is impossible for lawyers to go directly to the detention center to meet with criminal suspects and defendants. At present, this problem has not been really solved nationwide. Lawyers' meetings were blocked everywhere. And "involving state secrets" has become a common excuse to prevent lawyers from meeting, and the boundaries of "secrets" cannot be defined. In addition, it is also difficult for lawyers to meet, such as being limited in time and frequency, limiting the content of interrogation, prohibiting or allowing recording, and not allowing criminal suspects to sign the transcripts. As for the installation of audio and video recording equipment in the venue, the phenomenon of covert monitoring is even more common. The main reason why it is difficult for lawyers to meet is not that the law restricts lawyers to meet, but that individual case handlers or prison staff do not understand the relevant laws and regulations, or know that there are laws and regulations, but deliberately make things difficult because of misunderstanding or rejection of the lawyer's defense system.
(2) It is difficult to obtain a guarantor. After lawyers intervened in advance, a considerable number of criminal suspects and their close relatives asked lawyers to apply for bail pending trial for criminal suspects. Although it is difficult for lawyers everywhere to apply for bail pending trial, there are few successful cases. Article 75 of the Criminal Procedure Law stipulates that if the case-handling organ fails to complete or conclude the case within the statutory time limit and takes compulsory measures against the criminal suspect beyond the statutory detention period, the lawyer has the right to request the cancellation of the compulsory measures against the criminal suspect and defendant, or to request the change to compulsory measures such as bail pending trial. Article 20 of the "Regulations" of the three departments and one committee of the two houses also stipulates that if a lawyer applies for bail pending trial, "the organ that has the right to decide shall give a reply on whether or not to agree within 7 days". However, when lawyers make these requests, the vast majority of cases are: no results, no reply. Even with the reply, many case-handling organs are unwilling to accept the guarantor's guarantee, but only accept the deposit guarantee, and the deposit collected is surprisingly high, which the criminal suspect, the defendant and their relatives simply cannot afford. The main reasons why it is difficult for defense lawyers to obtain guarantors are: unclear legal provisions and lack of hard standards; The case-handling organ is worried that the criminal suspect or defendant will escape after being released on bail and is unwilling to bear the responsibility; Individual case-handling organs conduct money transactions on the issue of bail pending trial; Individual case-handling organs and investigators have misunderstandings about bail pending trial, and believe that as long as they are released on bail pending trial, they will generally not be re-imprisoned, and as long as they may be sentenced to actual punishment, they will not be released on bail pending trial.
(3) It is difficult to defend rights. Article 38 of the Criminal Procedure Law provides separately for defense lawyers: if a defense lawyer helps a criminal suspect or defendant to conceal, destroy or forge evidence or collude with witnesses, threatening or inducing witnesses to change their testimony, commit perjury or engage in other acts that hinder judicial proceedings, he shall be investigated for legal responsibility according to law. The difference is that investigators engaged in illegal evidence collection are only handled by their own side and cannot be investigated by lawyers. However, lawyers' illegal evidence collection is investigated by the public security and procuratorial organs of the other side, not their own industry administrative organs-judicial administrative organs. Article 306 of the new criminal law also specifically stipulates the crime of lawyers destroying evidence, forging evidence and obstructing testimony, which is unique in the legislation of various countries. Among the provisions of this article, the crime of "inducing" witnesses to change their testimony is the easiest to violate and the most difficult to define, and the investigation and public prosecution organs are most concerned and interested. According to statistics, since the promulgation of the new criminal law of 1997, more than 100 lawyers have been investigated for criminal responsibility in the name of "lawyer perjury" in Article 306 of the new criminal law. Some lawyers confronted the prosecutor in court and suddenly became prisoners ordered by the prosecutor in court. Imagine that there are two opposing opponents, one of whom holds the right to seize the freedom of the other. This kind of confrontation not only makes people feel funny, but even makes people feel scared. It is precisely because they dare not think or don't want to see this disaster that may come at any time that more and more lawyers, even some lawyers who are famous for their criminal defense, stay away from criminal cases.
Third, the idea of consolidating the legal status of defense lawyers.
There are three dilemmas in the legal status of defense lawyers in criminal proceedings: difficulty in meeting, difficulty in obtaining bail pending trial and difficulty in safeguarding rights, which eventually leads to a decline in the defense rate of lawyers in criminal cases. According to statistics, the defense rate of lawyers in criminal cases dropped from 40% in 1996 before the revision of the Criminal Procedure Law to 30% in 200 1 year. The legal status of defense lawyers is not consolidated, which leads to the decline of lawyers' defense rate in criminal cases, which is a long-term harm to the external image and actual process of national rule of law. As far as the individual case is concerned, it is not conducive to protecting the legitimate rights and interests of the defendant and maintaining judicial justice. Generally speaking, it is not conducive to the improvement of the rule of law and the protection of human rights. Therefore, the author believes that the following three measures should be taken to consolidate the legal status of defense lawyers in criminal proceedings:
(1) Firmly establish the concept of rule of law. All citizens, especially judicial organs and judicial personnel at all levels, should firmly establish the concept of the rule of law, fully understand the legal status of defense lawyers, respect defense lawyers, and encourage and support defense lawyers to participate in criminal defense, because judicial organs and judicial personnel respect lawyers, respect and protect lawyers' rights, and fundamentally respect themselves and the rule of law. If the society ruled by law is regarded as a building supported by the three pillars of legislation, law enforcement and justice, and the legal quality of all citizens living in it is its structural concept, then the three-dimensional pillar of justice is composed of judges, prosecutors and lawyers. The weakness, atrophy or even absence of any of the three dimensions will make this pillar structure unbalanced and fragile. Once the judicial pillar is unbalanced or fragile, the whole rule of law building will be in jeopardy. Judges, prosecutors, lawyers, and even all groups whose profession is to apply and study the law (some scholars call it "the same law") all depend on the prosperity and development of the rule of law, which is closely related to "one glory, one loss". Therefore, judges, prosecutors and lawyers should respect each other, because we all have a lofty pursuit and a sacred cause-to implement the general plan of governing the country according to law, build a socialist country ruled by law, and achieve fairness and justice in the whole society.
(2) Amend relevant laws in time. Amend relevant laws as soon as possible to consolidate the legal status of defense lawyers, and at least make relevant legislative and judicial interpretations as soon as possible. Improve the effective elimination mechanism of obstacles for defense lawyers to meet, and ensure defense lawyers to exercise their right to meet according to law, especially to meet criminal suspects and defendants directly in prison. On the issue of obtaining a guarantor, there should be corresponding safeguard measures. It is clearly stipulated that when a lawyer applies for bail pending trial for a criminal suspect or defendant, the case-handling organ must give a written reply on whether or not to agree within the prescribed time limit, especially when the criminal suspect, defendant and their relatives are in special financial difficulties, they should be allowed to provide a guarantor guarantee. We should attach great importance to the protection of lawyers' practice. We should learn from the practices of Britain, Germany, France, Luxembourg, Japan and other countries in the world, establish lawyers' criminal defense immunity ⑦ in legislation, amend or abolish the crime of lawyers' "inducing" witnesses to change their testimony in Article 306 of the new Criminal Law, legally eliminate the practice risk of defense lawyers, and let defense lawyers reduce their ideological burden, boldly perform their duties and put forward defense opinions, so as to protect them.
(3) Continuously improve the judicial system. The report of the Tenth National Congress of the Communist Party of China puts forward: "We should improve the institutional setup, division of powers and management system of judicial organs in accordance with the requirements of fair justice and strict law enforcement, and further improve the judicial system with clear powers and responsibilities, mutual cooperation, mutual restraint and efficient operation." Therefore, it is necessary to actively promote the reform of the judicial system, constantly improve the judicial system, and assign some management rights that affect the defense lawyers to perform their defense functions according to law, that is, the judicial administrative organs, to ensure that defense lawyers fully exercise their legal rights. For example, referring to the legal provisions that the judicial administrative organs uniformly exercise their functions and powers to manage prisons and reeducation-through-labor places, the administrative functions and powers of the public security organs over detention centers and detention centers are assigned to the judicial administrative organs for unified exercise, and the public security organs, procuratorial organs and legal organs are restricted according to law, so as to ensure that defense lawyers can directly exercise their right to meet in prisons and obtain bail pending trial according to law. Drawing lessons from the legal provisions that judicial administrative organs exercise the right to investigate criminal cases in prisons and take compulsory measures, we should give judicial administrative organs the right to investigate crimes of destroying evidence, forging evidence and obstructing testimony and the right to take compulsory measures to ensure that defense lawyers are not arbitrarily arrested and detained, improve the enthusiasm of lawyers to actively participate in criminal defense, effectively safeguard the legitimate rights and interests of criminal suspects and defendants, and safeguard the correct implementation of the law.