Original text:
Article 309 Whoever gathers people to disturb or assault a court, or beats judicial personnel, thus seriously disturbing the court order, shall be sentenced to fixed-term imprisonment of not more than three years, criminal detention, public surveillance or a fine.
Draft article 36:
Whoever disturbs the court order under any of the following circumstances shall be sentenced to fixed-term imprisonment of not more than three years, criminal detention, public surveillance or a fine:
(1) Gathering people to make trouble and storming the court;
(2) Beating a judicial officer or a participant in a lawsuit;
(3) Insulting, slandering, threatening judicial personnel or participants in litigation, refusing to listen to the court to stop them, and seriously disturbing the court order;
(four) there are other acts that disturb the order of the court, and the circumstances are serious.
Paragraphs 1 and 2 of article 36 of the draft are not disputed by all circles. However, the increase of paragraphs 3 and 4 has caused great controversy in the legal field, especially many lawyers have concerns, and even think that this article is aimed at lawyers, and they have proposed to suspend the revision or deletion of these two paragraphs.
The author thinks that there is nothing wrong with the contents of the third and fourth paragraphs of Article 36 of the draft, which can be approved, but it is really necessary to do a good job of explanation, explanation and publicity to dispel the concerns of lawyers and even legal professionals.
The specific reasons are as follows:
1. Paragraph 3 of Article 36 of the draft conforms to the Decision of the Central Committee of China on Comprehensively Promoting the Rule of Law (hereinafter referred to as the Decision), echoes and connects with the provisions of the three major procedural laws, and there is nothing wrong with it. It can be endorsed.
(1) The authority of the court should not be underestimated. The decision clearly puts forward: improve the legal provisions to punish illegal and criminal acts such as obstructing the judicial organs from exercising their functions and powers according to law, refusing to execute effective judgments and decisions, and flouting the authority of the court.
(2) The currently effective Civil Procedure Law of People's Republic of China (PRC) (revised 20 12) and the Criminal Procedure Law of People's Republic of China (PRC) (revised 20 12) clearly stipulate that those who insult, slander or threaten judicial staff or participants in litigation, which seriously disturb the court order and constitute a crime, shall be investigated for criminal responsibility according to law. The Administrative Procedure Law of the People's Republic of China (revised 20 14) has no such clear stipulation, but it can be understood in this way. Therefore, it is indeed necessary and understandable to add the third paragraph to Article 36 of the draft, but it will make the provisions of the procedural law unable to be effectively implemented.
1. The third paragraph of Article1/kloc-0 of the Civil Procedure Law of People's Republic of China (PRC) clearly stipulates that the people's court shall investigate criminal responsibility for disturbing the court order, assaulting the court, insulting, slandering, threatening or beating the judge, and seriously disturbing the court order; If the circumstances are minor, they shall also be fined and detained.
2. Paragraph 2 of Article 194 of the Criminal Procedure Law of People's Republic of China (PRC) clearly stipulates: Whoever gathers people to make trouble, attacks the court, insults, slanders, threatens or beats judicial personnel or participants in the proceedings, which seriously disrupts the court order and constitutes a crime, shall be investigated for criminal responsibility according to law.
3. Article 59 of the Administrative Procedure Law of the People's Republic of China clearly stipulates that if a party or other person commits one of the following acts, the people's court may, according to the seriousness of the case, admonish him, order him to make a statement of repentance or impose a fine of not more than 10,000 yuan or detention of not more than 15 days; If the case constitutes a crime, criminal responsibility shall be investigated according to law:
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(6) obstructing the staff of the people's court from performing their duties by violence, threat or other means, or stirring up trouble, attacking the court and disturbing the working order of the people's court;
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(3) It is worth mentioning that the third paragraph of Article 1 0 of the Trial Rules of the People's Court of People's Republic of China (PRC), the Supreme People's Court, which came into effect on June194, has clearly stipulated that acts such as disturbing the court order, assaulting the court, insulting, slandering, threatening or beating the judge, if the circumstances are minor, shall be fined and detained.
Second, the fourth paragraph of Article 36 of the draft is a "provision to avoid omission", which does not require too much association and interpretation.
Article 36, paragraph 4, of the draft, "There are other acts that disturb the order of the court, and the circumstances are serious", which belong to the bottom clause and are "clauses to avoid leakage".
It should be noted that in the current Criminal Law of People's Republic of China (PRC), there are a large number of all-out clauses. Therefore, from the perspective of legislative technology, I personally think that the fourth paragraph of article 36 of the draft is also beyond reproach and does not need too much association and explanation.
Thirdly, from the literal meaning of paragraphs 3 and 4 of article 36 of the draft, it is obviously difficult to draw a conclusion about this special group of lawyers.
Fourth, lawyers should be model of abiding by the law, abide by court rules and maintain court order; Even if you perform the duties of defense agency, you shall not commit such acts as "insulting, slandering, threatening" that seriously disturb the court order.
On the one hand, lawyers conscientiously perform their duties in French in court within the framework of the rule of law, even if their words and deeds are true and lasting ("dead"), they are blameless, because the primary duty of lawyers is to safeguard the legitimate rights and interests of clients.
On the other hand, "the court should be respected at all times, and the legal person should be respected first". The lawyer's mission is to "safeguard the legitimate rights and interests of the parties, safeguard the correct implementation of the law, and safeguard social fairness and justice", which is consistent with the goal and purpose of court trial activities. Therefore, it is the proper meaning of a lawyer's profession to safeguard legal dignity and respect legal authority. Lawyers should be advocates and practitioners of the law, must perform their duties as defense agents in strict accordance with the law, and abide by the litigation law and the Rules of People's Republic of China (PRC) People's Court of the Supreme People's Court and other relevant provisions. The behavior of "insulting, slandering and threatening" disturbs the court order and interferes with the normal proceedings, which not only damages the dignity and authority of national laws, but also deviates from the professional mission of lawyers and damages their professional image.
It should be emphasized that Article 49 of the currently effective Lawyers Law of People's Republic of China (PRC) (revised 20 12) (hereinafter referred to as the Lawyers Law) clearly stipulates that lawyers "disturb the order of courts and arbitration tribunals and interfere with the normal conduct of litigation and arbitration activities", which constitutes a crime, shall be investigated for criminal responsibility according to law. Article 37, paragraphs 1 and 2 of the Lawyers Law clearly stipulates that the personal rights of lawyers in their practice activities are inviolable. Lawyers' opinions on agency and defense expressed in court are not subject to legal investigation. Except for statements that endanger national security, maliciously slander others, and seriously disrupt court order. Among them, "lawyers' agency and defense opinions expressed in court are not subject to legal investigation", that is, lawyers enjoy immunity from speech responsibility in court according to international practice, but this does not mean that lawyers can say whatever they want in court. There are certain restrictions on "immunity from court speech responsibility", and some speeches, such as those that endanger national security, maliciously slander others and seriously disturb the court order, are not exempt.
Five, lawyers have become an important force to comprehensively promote the rule of law and build a socialist country ruled by law. Courts and procuratorates should respect and support lawyers in performing their duties according to law, effectively protect lawyers' practice rights, implement lawyers' litigation rights such as questioning, cross-examination and debate in court trials, and establish and improve a relief mechanism for lawyers' practice rights being violated.
In the trial practice, the conflict between the prosecution and the defense has intensified. Judges often hear that lawyers are expelled from the court and lawyers are prevented from performing their duties according to law, which has aroused great concern from all walks of life. Therefore, many lawyers have doubts about the contents of paragraphs 3 and 4 of article 36 of the draft, and they put forward suggestions for revision and improvement. This is understandable and should be understood.
(1) It is necessary to explain and explain Article 36 of the draft in the "Notes" of People's Republic of China (PRC) Criminal Law Amendment IX, so as to dispel the concerns of lawyers and even legal professionals.
(2) Determine the criteria for determining the crime of disturbing the court order in time, make clear explanations of terms such as "insult", "slander" and "threat" (especially "threat") as far as possible, and strictly determine the criteria for determining "seriously disturbing the court order" from the aspects of the subject, time, subjective aspects and consequences of the behavior, so as to clarify the boundary between crime and non-crime.
(3) If Article 36 of the draft is finally passed, lawyers' rights to debate and defend should be effectively guaranteed in accordance with Article 36 of the Lawyers Law, and lawyers' personal rights and immunity from speech responsibility in court trials should be effectively guaranteed in accordance with Article 37 of the Lawyers Law, so as to ensure that lawyers fully perform their duties as agents ad litem or defenders. In court, you can boldly state your opinions on agency or defense, without worrying about being investigated for civil or criminal responsibilities such as infringement, libel, perjury and shielding, so as to maximize the function of court trial, safeguard the correct implementation of the law, safeguard the legitimate rights and interests of criminal suspects, defendants and other litigants, and achieve the purpose of safeguarding judicial justice.
On the other hand, the second paragraph of Article 37 of People's Republic of China (PRC) Lawyers Law "maliciously slanders others and seriously disturbs the court order" needs to be clearly explained, so as to clarify the boundaries of lawyers' remarks of "maliciously slandering others and seriously disturbs the court order", which is helpful to clarify the boundaries between crimes and non-crimes of "disturbing the court order" and try to avoid lawyers committing crimes for no reason because of their remarks in court.
(Author: Qiu, Fujian United Reliance Law Firm)