In China, in the process of drafting the Lawyers Law and the new Criminal Law, whether lawyers should enjoy the immunity to testify has always been the focus of debate in academic, legal, judicial and legislative circles. Only later, due to various reasons, the above-mentioned laws in our country did not give lawyers a clear immunity to testify. With the rapid increase of cases in which lawyers are detained, arrested or even sentenced for handling criminal cases, the participation rate of lawyers in criminal cases has decreased year by year, and whether to grant lawyers immunity to testify has once again become an urgent problem for legislation and justice. In judicial practice, lawyers actually have a certain degree of immunity to testify. Due to years of legal education, most legal professionals have a certain understanding of lawyers' immunity from testifying, as well as at work. However, due to the lack of specific and clear legal provisions, everyone's understanding of this issue is different and inconsistent, so that there is no way to deal with related issues better and more harmoniously. Although the law of our country does not directly stipulate the system of lawyer's immunity from testifying, a careful study of this law shows that the following aspects still embody the spirit of lawyer's immunity from testifying. First of all, Article 35 of the Criminal Procedure Law stipulates: "The defender's responsibility is to put forward materials and opinions to prove the innocence, lighter or mitigated criminal responsibility of criminal suspects and defendants according to facts and laws, and safeguard the legitimate rights and interests of criminal suspects and defendants." Since the lawyer's duty is to provide materials and opinions to prove the client's innocence, or to reduce or exempt him from criminal responsibility, in criminal proceedings, the lawyer has no duty to provide facts and evidence to prove the client's guilt, guilt or severe punishment. Lawyers should be exempted from the burden of proof to prove that the defendant is guilty or guilty in litigation, and keep the relevant secrets that clients know in their professional activities that they don't want to disclose, and they should not be prosecuted for the crime of shielding because lawyers don't testify. Otherwise, the lawyer's defense duty is impossible. Secondly, according to Article 33 of China's Lawyers Law and Article 9 of the Code of Professional Ethics and Discipline for Lawyers, lawyers should keep the state secrets and the business secrets of the parties they know in their practice activities and must not disclose the privacy of the parties. This shows that lawyers have the obligation to keep professional secrets, which is an important aspect of lawyer's immunity system. Finally, in criminal proceedings, a witness refers to a litigation participant who knows the case except the parties and testifies to the public security and judicial organs. If a lawyer knows the real situation of the case before accepting the entrustment, he should first become an exclusive witness and have the obligation to testify, then he can no longer accept the entrustment of the parties, because the witness is irreplaceable. In this case, the lawyer's immunity certainly does not apply. Although the lawyer's immunity to testify is reflected, it is not complete, mainly in the following aspects. First of all, although the law stipulates the obligation of lawyers to keep professional secrets, it does not clearly stipulate that the corresponding lawyers are exempt from testifying. This violates the consistency of rights and obligations. Secondly, in the witness system, the law does not clearly stipulate the right of witnesses to refuse to testify, including the lawyer's immunity. Third, there is no clear provision exempting lawyers from covering up their crimes when they refuse to provide professional secrets. Finally, although it is admitted in judicial practice that lawyers can't be witnesses in the same case at the same time, there is no regulation on whether professional secrets known by lawyers can be used as witnesses in different cases. In view of this, the following suggestions are put forward to construct the lawyer immunity system in China. 1. Amend the relevant provisions of the witness system in China, and clearly stipulate the privilege of witnesses, including lawyers, to refuse to testify. ⑥ Paragraph 1 of Article 48 of the Criminal Procedure Law stipulates: "Anyone who knows the circumstances of a case has the obligation to testify." After that, one sentence should be added, "except those who enjoy immunity from testimony according to law." Similarly, the Civil Procedure Law should be amended accordingly. (2) Amend the relevant provisions on the crime of harboring in China, and clearly stipulate that when the relevant person exercises the immunity to testify, the judicial organ cannot hold him responsible for the crime of harboring. (Article 3 1 1 of China's criminal law stipulates the crime of sheltering. In the provisions of this crime, the difference between exercising immunity to testify and harboring behavior should be clearly defined, and it should not be treated as a crime. 3. Clearly define the scope and restrictions of professional secrets. 4. The lawyer's immunity from testifying is a right and an obligation, and the legal liability for violating this obligation should be stipulated. 5. Amend the Criminal Procedure Law and relevant regulations to clarify that lawyers have the right to ask other third parties not to be present or not to be inspected when meeting or communicating with detainees. At present, the immunity system of lawyers is not particularly perfect, which also has an impact on the development of lawyers themselves. Therefore, it is a long way to go to construct the lawyer's immunity system in China. If your situation is complicated, the website also provides online consultation service for lawyers, and you are welcome to have legal consultation.
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Article 40 of the Criminal Procedure Law: Defence lawyers may consult, extract and copy the case file from the date when the people's procuratorate examines and prosecutes the case. Other defenders may also consult, extract and copy the above materials with the permission of the people's court or the people's procuratorate. Article 41 of the Criminal Procedure Law: Defenders have the right to apply to the people's procuratorate or the people's court for the collection of evidence materials to prove the innocence or minor crimes of criminal suspects and defendants collected by public security organs and people's procuratorates in the process of investigation, examination and prosecution.