Is criminal defense a right or a welfare?

Professor Chen Guangzhong, a famous expert in criminal procedure law, made the above comments in this humorous language when talking about the new criminal procedure law in a forum. There may be different opinions on the revision and implementation of China's criminal procedure law. Just like the vivid metaphor of the old professor, although the new criminal procedure law is still not satisfactory, this revision is indeed a great progress in China's criminal procedure law. One of the brightest stars in the sky, I think it is criminal defense system. I wonder how many people have thought about this proposition: Is criminal defense a right or a welfare? If it is a right, the law should naturally protect it without reservation; If it is a kind of welfare, it may be understood as a gift and charity, which can be given or not, and can be given more or less. It can be said that China's criminal defense today has inadvertently entered a misunderstanding, that is, many people, including the public security law, think that criminal defense is a kind of welfare. In fact, criminal defense should be a natural right, a right endowed by law. The author thinks that criminal defense system is the core system to protect the rights of criminal suspects and defendants in criminal proceedings. The revision of the defense system in the Criminal Procedure Law has been highly praised, and it has indeed taken a big step to protect the rights of criminal suspects and defendants. Its progress is mainly reflected in the following aspects: lawyers have finally become justified defenders. The new article 33 clarifies that a criminal suspect has the right to entrust a defender in the investigation stage, and determines that the lawyer entrusted by a criminal suspect is the defender in the investigation stage. However, in the previous 1979 criminal procedure law, there was no room for defenders in the pretrial procedure. It is stipulated that informing the defendant that he can entrust a defender or appoint a defender for the defendant when necessary shall be carried out after the people's court decides to hold a hearing. In other words, only when the case enters the trial stage can the defendant entrust a defender or the court appoint a defender for the defendant. As we all know, criminal litigation is a litigation activity in which investigation organs, procuratorial organs and judicial organs solve the criminal responsibility of defendants according to law. Scholars believe that: as the stage of prosecution by the state procuratorial organs according to their functions and powers, the pretrial procedure is the most intense stage of the game between rights and powers, and it is also the most vulnerable period for human rights to be violated by state rights. Therefore, the defender's trial defense should be based on full preparation in the pre-trial stage, otherwise, the evidence and opinions in favor of the defendant can not be put forward in the trial. If so, the trial will become a mere formality, which will ultimately affect judicial justice. In criminal proceedings, the defendant is weak. If there is no defender to participate in the pre-trial stage, it is likely to lead to the extreme expansion of the right of public prosecution due to lack of restraint, resulting in an imbalance between prosecution and defense, thus infringing on the rights of the defendant. 1996 criminal procedure law stipulates that the criminal suspect has the right to entrust a defender from the date when the case is transferred for examination and prosecution. The law also stipulates that a criminal suspect may hire a lawyer to provide legal advice and represent his complaint and accusation after being interrogated for the first time by the investigation organ or from the date when compulsory measures are taken. It can be said that the 1996 Criminal Procedure Law has made great progress in the question of when a criminal suspect or defendant can entrust a defender or lawyer. However, although lawyers are allowed to intervene in the investigation stage, their legal status is excluded from defenders, so that they can only be labeled as lawyers who provide legal assistance to criminal suspects. Defender's defense originated from western countries with mature legal civilization, and researchers found that even there, the concept or significance of defense has long been limited to the scope of substantive defense. Influenced by this traditional concept, people think that it is usually difficult for lawyers to substantially defend the defendant's crime and the severity of punishment at the investigation stage. Therefore, even if lawyers are involved in the investigation stage, they can only provide some help for criminal suspects, such as legal advice, and cannot defend in substance. Therefore, in China's Criminal Procedure Law (1996), lawyers in the investigation stage are not given the legal status of defenders, but only provide legal assistance to criminal suspects as lawyers. Under the modern concept of the rule of law, procedural justice should pay equal attention to substantive justice. In the investigation stage, lawyers protect the legitimate rights and interests of criminal suspects in accordance with the law, such as demanding the termination of extended detention, correcting illegal inquiries, applying for bail pending trial, etc., which can be called procedural defense. There is an old saying: if the name is not regular, it will be bad, and if the name is not good, it will be bad. 20 12 the new criminal procedure law clarifies the legal status of lawyers as defenders in the investigation stage, which is undoubtedly of great benefit to lawyers in fully safeguarding the litigation rights and other legitimate rights and interests of criminal suspects in the investigation stage. Defenders only need to really defend themselves. Article 35 of the original Criminal Procedure Law stipulates that the defender's responsibility is to put forward materials and opinions to prove the innocence, lighter punishment or reduction or exemption of criminal responsibility of criminal suspects and defendants according to facts and laws, and safeguard the legitimate rights and interests of criminal suspects and defendants. On the surface, this regulation is not operable and has obvious deviation. To this end, the new regulations have made two amendments to it: one is that the defender no longer bears the burden of proof, and the other is to emphasize both substantive defense and procedural defense. In this revision, the word "proof" was deleted from the materials and opinions put forward to prove the innocence of criminal suspects and defendants or to reduce or exempt them from criminal responsibility. Although the written expression has not changed much, its content has changed substantially, which embodies the basic principle of presumption of innocence in modern criminal proceedings. The principle of presumption of innocence requires that in criminal proceedings, procuratorial organs bear the burden of proof to prove the guilt of criminal suspects and defendants, while criminal suspects, defendants and their defenders do not bear the burden of proof to prove the innocence or guilt of criminal suspects and defendants. In other words, whether the defender produces evidence depends on the need to defend the criminal suspect and the defendant. It is a litigation right of the defender to produce evidence to support his own defense views and opinions, and it cannot be stipulated as his responsibility. In Du's murder case, the judgments of the first and second instance refuted the innocent defense opinions made by the defense lawyers, mostly because the defenders did not provide sufficient evidence to the court to prove that their innocent defense opinions were established. It can be seen that the concept that the defense should bear the burden of proof to prove the defendant's innocence in the lawsuit has a great influence on the judge, which is very unfortunate for the defendant. Fortunately, the new criminal procedure law deleted the word "proof" in the original article, which broadened the angle and space of defense. You can defend by presenting evidence, you can also defend against the accused facts and problems in the evidence without presenting evidence, and you can also defend completely from the application of law (including conviction and sentencing). It can be seen that the lawyer's procedural defense right in criminal pretrial procedure is very important for the defendant and the lawyer who defends him. However, as mentioned above, influenced by the traditional defense concept, defense has always been limited to the substantive defense of the defendant's guilt or not at the trial stage. Although there are few changes in the text, this revision profoundly reflects that the concept of defense is gradually changing. The rights and obligations of defenders in criminal proceedings have been reasonably defined, and there will be laws to protect the litigation rights of criminal suspects and defendants in the future. It can be said that the amendment of this clause has reason to be positively evaluated. Compared with the original regulations, the new regulations have been revised in the following four aspects: First, defense lawyers can directly meet with criminal suspects and defendants in detention without the permission and arrangement of the case-handling organ. The original Criminal Procedure Law stipulated that defense lawyers can directly meet with criminal suspects and defendants in custody from the date when the people's procuratorate examines and prosecutes the case. However, in the investigation stage, if a lawyer wants to meet a criminal suspect in custody, it needs to be approved by the investigation organ, and the investigation organ can even decide whether to send personnel to be present according to the situation and needs of the case. According to the new Criminal Procedure Law, if a defense lawyer requests to meet with a criminal suspect or defendant in custody with a practice certificate, a certificate from a law firm, a power of attorney or a letter of legal aid, the detention center shall arrange the meeting in time, which shall not exceed 48 hours at the latest. This not only realizes the connection with this basic principle, but also provides great convenience for defense lawyers to meet criminal suspects and defendants in custody. Secondly, involving three types of cases, in the process of investigation, the defense lawyer should get the permission of the investigation organ when meeting the criminal suspect in custody. Article 37 of the new Criminal Procedure Law stipulates that in cases of crimes endangering national security, terrorist activities and particularly serious bribery crimes, defense lawyers should obtain the permission of the investigation organ when meeting with criminal suspects in custody during investigation. The author believes that this provision should be based on the premise that these cases may cause great harm to national security and public safety, and it is an exception based on the particularity of cases, and any other cases are not affected by this provision. In addition, in the stage of examination, prosecution and trial, even if these three types of cases are involved, defense lawyers do not need the permission of the case-handling organ to meet the criminal suspects and defendants in custody. However, this provision is obviously insufficient, that is, the third kind of so-called particularly serious bribery cases can not be compared with the first two kinds of cases in terms of the degree of social harm or the urgency of cracking down on crime. Why should it be included in the list that defense lawyers need to approve when meeting criminal suspects in custody during the investigation stage? What's more, it is very vague, and the power of judgment and definition lies in the investigation organ. In this way, particularly important concepts are likely to be interpreted and extended at will, so that the investigation organ can justifiably deprive the defense lawyer of the right to meet the criminal suspect in custody, and eventually the legitimate rights and interests of the criminal suspect will be violated. Thirdly, from the date when the case is transferred for examination and prosecution, the defense lawyer can verify the relevant evidence from the criminal suspect and defendant. The provision that defense lawyers can verify evidence from criminal suspects and defendants is a new content in the revision of the Criminal Procedure Law, which reflects the progress of the new criminal procedure law in keeping with international standards, enables criminal suspects and defendants to know and master the criminal facts and related evidence they are accused of in time, and also gives defense lawyers the opportunity to fully exchange cases and evidence with criminal suspects and defendants to prepare for their own defense. Finally, defense lawyers are not monitored when meeting with criminal suspects and defendants. As mentioned above, Article 96 of the former Criminal Procedure Law stipulates that when a lawyer meets a criminal suspect in custody at the investigation stage, the investigation organ may send personnel to be present according to the needs of the case. The revised Criminal Procedure Law stipulates that defense lawyers have the right not to be monitored at any stage when they meet with criminal suspects and defendants. From a logical and reasonable point of view, this rule of not being monitored certainly excludes the possibility that the case-handling organ will send personnel to the scene. That is to say, when defense lawyers meet with criminal suspects and defendants, the case-handling organs can neither use technical means for monitoring nor send personnel to be present, so as to ensure that defense lawyers can meet with criminal suspects and defendants alone in a confidential manner, help them establish mutual trust and eliminate interference from external factors. As you can imagine, when a defense lawyer meets a criminal suspect or defendant, if the case-handling organ opposite to the defense lawyer is present, on the one hand, the criminal suspect or defendant will psychologically resist full communication with the defense lawyer and hinder the defense lawyer from preparing for his own defense; On the other hand, before the start of the trial stage, the case-handling organ also mastered more information and occupied an advantage. In this way, the strength of the prosecution and the defense will be seriously unbalanced, and the criminal suspects and defendants who are already in a weak position will lose the opportunity to defend their innocence or misdemeanor, and their legitimate rights and interests will not be properly protected. Article 37 of the new Criminal Procedure Law (20 12) has treated the stubborn problem of lawyers meeting with caution. I believe it will play a positive role in perfecting criminal defense system, fully safeguarding human rights and promoting judicial justice. To sum up, the 20 12 criminal procedure law has been revised to a large extent, with 290 articles in total, and 1 10 has been revised and re-stipulated. Compared with the original 225 articles, 65 articles were added and 45 articles were revised. It can be said that this is a major operation on the original criminal procedure law of our country, and it has removed many stubborn diseases, especially those in the defense system. China's defense system has been greatly improved, which truly reflects that criminal defense is the core value of protecting the rights of criminal suspects and defendants, not just welfare. At the same time, China's criminal procedure system is striding forward in the direction of international integration, which fully reflects its progress. Although some diseases have not been cured, we should have full confidence in China's criminal procedure system, as Professor Chen Guangzhong said: The sun is high, and the road is long and the road is Xiu Yuan. (Author: School of Civil and Commercial Economics, China University of Political Science and Law)