1. Regarding the lawyer’s right to meet with criminal suspects:
1.
Time for the right to meet with a lawyer:
The "Lawyers Law" stipulates: from the date of the first interrogation or compulsory measures.
The "Criminal Procedure Law" stipulates: From the date when a criminal suspect is interrogated for the first time or compulsory measures are taken by the investigative agency.
Conflict point: The Lawyers Law deletes the word "after" in criminal prosecution.
2. Right to interview procedures:
Lawyer Law: No authorization is required under any circumstances.
The "Criminal Procedure Law" stipulates that in cases involving state secrets, lawyers who meet with criminal suspects in custody must obtain approval from the investigative agency.
Conflict: The Lawyers Law changes the requirement in the Criminal Procedure Law that cases involving "state secrets" must be approved.
3. Status of the right to meet:
The Lawyers Law stipulates that when meeting criminal suspects or defendants, eavesdropping is not allowed. Since eavesdropping is not allowed, eavesdropping in front of investigators is certainly not allowed.
The Criminal Procedure Law stipulates: When a lawyer meets with a criminal suspect in custody, the investigative agency may send investigators to be present based on the circumstances and needs of the case.
Direct point of conflict: The Lawyers Law breaks through the Criminal Procedure Law and clearly stipulates the right not to be monitored during interviews.
Indirect conflict point: The Lawyers Law deprives the investigative agency of its "right to be present."
Appendix:
Article 33 of the "Lawyers Law" stipulates:
The date when the criminal suspect is interrogated for the first time or compulsory measures are taken by the investigation agency From now on, entrusted lawyers have the right to meet with criminal suspects and defendants to learn about the case based on their practice certificate, law firm certificate, power of attorney or official legal aid letter.
Lawyers’ meetings with criminal suspects and defendants are not subject to surveillance.
Article 96 of the "Criminal Procedure Law" stipulates:
A criminal suspect may hire a lawyer after being interrogated for the first time by the investigation agency or from the date when compulsory measures are taken. Provide them with legal advice and represent them in appeals and accusations. If a criminal suspect is arrested, the hired lawyer can apply for release on bail pending trial. In cases involving state secrets, if a criminal suspect hires a lawyer, he must obtain approval from the investigative agency.
The entrusted lawyer has the right to learn from the investigation agency about the suspect's alleged crime, and can meet with the criminal suspect in custody to learn about the case from the criminal suspect. Lawyers meet with criminal suspects in custody, and investigative agencies send personnel to the scene based on the circumstances and needs of the case. In cases involving state secrets, lawyers who meet with criminal suspects in custody must obtain approval from the investigative agency.
Article 33 of the "Criminal Procedure Law" stipulates:
In public prosecution cases, the criminal suspect has the right to entrust a defender from the date the case is transferred for review and prosecution.
The People’s Procuratorate shall, within three days from the date of receipt of case materials transferred for review and prosecution, inform the criminal suspect of the right to entrust a defender. The People's Court shall, within three days from the date of accepting a private prosecution case, notify the defendant of the right to entrust a defender.
2. Regarding the lawyer’s right to review:
Conflict: Regarding the scope of the right to review, the Lawyers Law and the Criminal Procedure Law are obviously in conflict. The scope of the Lawyers Law is much larger than that of the Criminal Procedure Law. prescribed scope.
Relevant provisions:
Article 34: Lawyers entrusted to handle cases have the right to inspect, excerpt, and copy litigation documents related to the case starting from the date of review and prosecution of the case. and case file materials. Lawyers accept entrustment from the date the People's Court accepts a case and have the right to inspect, excerpt, and copy all materials related to the case.
Article 36 of the "Criminal Procedure Law":
From the date of review and prosecution by the People's Procuratorate, defense lawyers may consult, excerpt, and copy the litigation documents and technical appraisal materials of the case , can meet and communicate with criminal suspects in custody.
From the date the People's Court accepts the case, defense lawyers may review, excerpt, and copy materials suspected of criminal facts in the case, and may meet with and communicate with defendants in custody.
Three: Conflicts regarding lawyers’ right to investigate and collect evidence:
1. Direct conflict:
The "Lawyers Law" stipulates that lawyers do not need to go through any process to investigate and collect evidence. Approved, as long as "they hold a lawyer's practicing certificate and a law firm certificate, they can investigate legal matters related to the case they are undertaking to relevant units or individuals."
The Criminal Procedure Law stipulates: Lawyers are witnesses and relevant Unit defense must "obtain the consent of witnesses or other relevant units and individuals." When lawyers collect evidence from victims, they must "obtain the permission of the People's Procuratorate or the People's Court, and with the consent of the victim or his close relatives or witnesses provided by the victim, they may collect materials related to the case from them."
2. Implicit conflict:
The "Lawyers Law" does not impose any stage restrictions on the collection of evidence after the lawyer accepts the entrustment, which means that the lawyer accepts the entrustment of the criminal suspect to carry out investigation and evidence collection. The work spans three stages: investigation, prosecution and trial.
The Criminal Procedure Law clearly limits the stage of investigation and evidence collection by lawyers to the stage of review and prosecution. During the investigation stage, lawyers only have the right to "provide legal advice, act on behalf of appeals, accuse, and apply for bail pending trial." And there is no right to investigate and collect evidence."