At present, world political democratization, economic integration and social popularization are the general trends of international social development. The political democracy, economic development and social progress of all countries are inseparable from the influence and restriction of the international community. With China's imminent accession to the WTO, the competition in the world will be fairer, fiercer and more complicated, and the development of China will be more and more influenced by the international community. In this context, it is undoubtedly important to know what China lawyers should do and what kind of lawyer system the state should establish to guide the development of lawyers. The world economy shows that in any country with a sound democracy and legal system, lawyers must be an important force of national democracy and legal system and a major participant in national economic rules. We should consider learning from international advanced experience, change the current situation that is not conducive to the development of the lawyer industry, and improve our lawyer system.
First, the status quo of lawyers
The political status of lawyers is extremely low.
1, a considerable number of government departments do not understand lawyers, discriminate against lawyers, disdain to talk to lawyers, and do not cooperate with their normal work. Some government departments even make some restrictive regulations on lawyers, and what's more, some behaviors that lawyers perform their duties normally and safeguard the interests of the masses are regarded as enemies of the government.
2. There are relatively few lawyers who can participate in and discuss politics. Except for a few lawyers who were elected as deputies to the National People's Congress and members of the Chinese People's Political Consultative Conference as "vases", most lawyers did not have the opportunity to participate in the discussion of state affairs. However, the number of lawyers elected to power organs as deputies to the National People's Congress is far less than that of those who entered the Chinese People's Political Consultative Conference, which makes it impossible for lawyers to give full play to their professional advantages. It is these lawyers who are elected as representatives to participate in and discuss state affairs. Most of them are elected by a few democratic parties, and few lawyers are elected.
(2) Lawyers' right to investigate and collect evidence is too narrow.
Lawyers' right to investigate and collect evidence is too narrow, which is not conducive to lawyers' work, handling cases and handling legal affairs. "Based on facts" Our laws give lawyers too narrow right to investigate and collect evidence, which is embodied in the following aspects:
1, giving lawyers the right to investigate and collect evidence is not sufficient. Article 3 1 of the Lawyers Law stipulates: "When a lawyer undertakes legal affairs, he may investigate the situation with the consent of the relevant unit or individual." Article 37 of the Criminal Procedure Law also makes a similar provision. These provisions mean that lawyers can't investigate evidence and situations related to cases or legal affairs without the consent of witnesses, relevant units and individuals, and lawyers don't have complete and sufficient rights to investigate and collect evidence. According to the traditional concept and culture of our country, it is better not to go to court, and it is better to do more than one thing. When it comes to cases and legal affairs, no one dares to avoid them. Who wants to get involved in the whirlpool of litigation disputes? This provision puts lawyers in an extremely difficult situation of investigation and evidence collection, which is equivalent to general agents and restricts lawyers from playing their due role.
2. It is unreasonable that part of the lawyer's right to investigate and collect evidence is attached to the prosecution of the other party. In criminal proceedings, lawyers, as defenders and prosecutors, form the opposing sides of prosecution and defense, and achieve the purpose of maintaining the correct implementation of the law from different angles of prosecution and defense. However, in the process of both the prosecution and the defense, in order to perform their duties, there will inevitably be fierce debates, opposing views and stalemate between the two sides, which requires strong evidence to prove their views. Article 37 of the Criminal Procedure Law stipulates that a defense lawyer "may apply to a people's procuratorate or a people's court to collect and obtain evidence" and "may collect materials related to this case with the permission of a people's procuratorate or a people's court". In fact, this is to change the lawyer's right to investigate and collect evidence into the right to apply, and to obtain the consent of the prosecution conditionally, so that the defense is attached to the prosecution, which is obviously unreasonable in form; The status is obviously unequal; In this way, it is impossible to achieve the expected purpose. As prosecutors of the prosecution, they instinctively guard against defense opinions, and some even don't submit the collected secondary evidence. How do they adopt the opinions of defense lawyers and collect evidence against the prosecution?
3. The requirements for lawyers to provide evidence are too harsh. According to the Lawyers Law and related laws, if a lawyer provides false evidence or conceals facts in his practice, his practice certificate shall be revoked, and if the case constitutes a crime, he shall be investigated for criminal responsibility according to law. The law stipulates that it is necessary and necessary to punish illegal and criminal acts in lawyers' practice. But it must be scientific and rigorous, and its scope must be strictly limited. The author believes that as long as it is not a false certificate made up by people, lawyers should not bear the responsibility. The existing legal provisions are not scientific and rigorous enough, and the requirements for lawyers are too harsh, which leads to lawyers being investigated without reason from time to time.
(3) Lawyers' rights in practice are often illegally deprived.
In criminal cases, it is most common for lawyers to meet with criminal suspects for various reasons, and even to be refused arrangement, which makes lawyers disheartened and many are unwilling to take criminal cases again. In civil cases, lawyers' rights of marking papers, cross-examination and expressing opinions are often illegally deprived or violated. Especially in the trial of individual power and money transactions, administrative intervention cases and cases involving leading relatives and friends, lawyers argue lawyers and judges judge, ignoring some obviously correct opinions. Judicial practice has proved to the society that the functions of lawyers are extremely limited and can be easily deprived. This is the status quo of lawyers in China.
Second, perfect thinking.
The present situation of lawyers in China is not conducive to the development of lawyers. There are both the establishment of the lawyer system and the personnel system of the national political system, which involves both the lawyer law and other basic laws. It is not easy to change it. However, as a lawyer, no matter how difficult it is, we should try our best to explore and appeal. The author thinks:
1. Establish a mobile mechanism for lawyers to transfer to the political and legal circles. Only by establishing such a mechanism can a large number of outstanding talents design themselves in a planned way and hone their development in the lawyer industry, which can not only train legal talents for the country, but also improve the overall level of the lawyer team. In particular, lawyers can strengthen exchanges and contacts with political circles, have regular dialogues, reflect social problems, play a political role, and achieve checks and balances on public rights and private rights that deviate from the law.
Establishing the mechanism of transferring lawyers to political and judicial organs and selecting lawyers with excellent quality, political ability and administrative and decision-making ability can undoubtedly accelerate the realization of the general plan of the CPC Central Committee to "govern the country according to law"; Selecting lawyers with rich experience, skills and comprehensive ability to enter the judicial field will undoubtedly become the backbone of the judicial field and accelerate the reform of the judicial system.
2. Increase opportunities for lawyers to participate in and discuss state affairs, and gradually expand the proportion of people participating in and discussing state affairs. It is believed that people's congresses and CPPCC at all levels should be represented by lawyers and maintain a certain proportion, especially some of them should be elected by lawyers. Lawyers have extensive contact with society, can listen to the voices of different people from all walks of life, are familiar with national laws, and generally have certain ability to participate in and discuss state affairs. Maintaining a certain proportion of lawyers' representatives in power institutions at all levels is conducive to the right institutions to make correct reflections and decisions.
3. Establish the immunity system of criminal defense lawyers. Throughout the international community, in some countries with sound legal systems, lawyers enjoy a certain immunity system in principle, that is, no matter what lawyers say in litigation is right or wrong, they are not subject to legal investigation. At the same time, unless there are special provisions in the law, lawyers may not be summoned to testify in court. Although the political environment in our country has been greatly improved, there will be no more cases where lawyers are punished on the pretext of making reactionary remarks in litigation. However, the phenomenon of attacking and even persecuting lawyers is still widespread, so that how to protect lawyers' rights has become a hot topic for some time. A prosecutor accused a person and was acquitted, but no one was investigated for criminal responsibility, while the lawyer was investigated for shielding because of his innocent defense. This is the sorrow of China's lawyer system. Protecting lawyers' own rights, protecting lawyers from being held accountable for statements in criminal proceedings, and mobilizing lawyers' initiative and enthusiasm in criminal proceedings are issues that should be seriously considered. It is absolutely necessary to stipulate that lawyers enjoy immunity in criminal defense, which will undoubtedly fully mobilize the enthusiasm of lawyers in criminal defense, improve the quality of criminal trials and reduce the risk of lawyers participating in criminal proceedings.
4. Strengthen lawyers' right to investigate and collect evidence. First of all, amend the Lawyers Law as soon as possible to clearly stipulate that lawyers have the right to fully investigate and collect evidence. Secondly, it is suggested that the legislature make supplementary provisions before amending other laws, which are consistent with the provisions of the Lawyers Law, and then gradually amend the relevant laws when they are mature. To strengthen lawyers' right to investigate and collect evidence, the author thinks there should be the following four points: first, lawyers are required to undertake cases and legal affairs and have the right to investigate relevant units and individuals. Second, lawyers do not artificially create false evidence and should not bear any legal responsibility. Thirdly, considering that some units and individuals refuse to cooperate with lawyers to investigate and collect evidence, lawyers have the right to apply to people's procuratorates and people's courts for obtaining relevant evidence and materials, and lawyers apply for obtaining materials related to cases, and people's procuratorates and people's courts must obtain them when they receive lawyers' applications for obtaining evidence. Fourth, if there is definite evidence to prove that the other party has materials related to the case and refuses to provide them, in order to find out the facts of the case, the lawyer has the right to apply to the people's court to order the other party to submit them, and the people's court should order the other party to submit them, otherwise the other party will bear the responsibility of losing the case.
5. Establish a lawyer fee transfer system. The essence of law lies in safeguarding rights and fairness and justice. If one party is forced to file a lawsuit in order to safeguard its legitimate rights and interests, the reasonable expenses of hiring a lawyer cannot be borne by the other party. Even if all the legal judgments are successful, it is unfair and unreasonable to pay some fees that should not have been paid. There used to be a saying that legal fees were not necessary. As long as you are reasonable, the court will rule in your favor. This statement is not in line with the objective reality and is too simplistic. Its essence is to resist the role of lawyers. In fact, many parties can't tell the facts clearly and give evidence, and the judges of the court don't know all the laws, regulations and rules. In the trial, how to apply the facts, laws, regulations and rules involved needs to be debated by the parties, which shows that the court may not reach a fair conclusion as soon as it enters the proceedings. With the promulgation and implementation of more and more national laws, regulations and rules, it is impossible for the parties to master and apply all these laws, regulations and rules. If they lack the ability to participate in litigation, they may bear the responsibility of losing the case. As professionals, lawyers know how to obtain and use evidence correctly, apply national laws and regulations, and protect the legitimate rights and interests of the parties. Therefore, it is necessary to hire a lawyer, and the cost of hiring a lawyer should be borne by the losing party. At present, most countries ruled by law in the world have established a lawyer fee allocation system. In our country, because there is no legal provision for the system of attorney fee transfer, there are not a few people who should sue for lack of fees, and lawyers have lost a lot of business. When a country establishes a lawyer system, it should have a broad and basic foundation for survival and development.
6. Establish an appropriate legal service system for compulsory lawyers and promote the process of national legalization.
At present, in order to solve the increasingly serious multi-angle debt disputes, transaction bribery, black-box operation and other problems in society, lawyers' legal services are needed, and the law can curb the development and spread of these problems in advance. Therefore, it is suggested to establish a compulsory entry system in which state-invested projects, government procurement and state-owned enterprises must be provided with legal services by lawyers. It is of far-reaching significance for lawyers to provide legal services for protecting state-owned assets, preventing power and money transactions and putting an end to social corruption.