First of all, the criminal suspect and the defendant refused the defender to defend them;
The second is that the defense lawyer refuses to defend. The refusal of criminal suspects and defendants to defend is related to Article 39 of the Criminal Law and Articles 38, 36, 164 and 165 interpreted by the Supreme Court.
The specific relationship between these provisions is as follows: Article 38 of the Supreme Law Interpretation and Article 165 are further interpretations of Article 39 of the Criminal Procedure Law; The Supreme Court explained that article 36 provided for compulsory defense. In order to facilitate understanding and explanation, the specific contents of these terms are listed below. Article 39 of the Criminal Procedure Law stipulates: "During the trial, the defendant may refuse the defender to continue to defend him, or entrust other defenders to defend him."
The Supreme Court interprets the provisions of Article 36: "If the defendant has not entrusted a defender, the people's court shall appoint a defender for him under any of the following circumstances:
People who are blind, deaf, dumb or have limited capacity;
(two) minors under the age of eighteen at the time of hearing;
(3) people who may be sentenced. "Article 38 stipulates that" if the defendant insists on exercising the right of defense and refuses the defender appointed by the people's court to defend him, the people's court shall allow it and record it; The people's court shall allow the defendant to refuse the defender appointed by the people's court to defend him under any of the circumstances specified in Article 36 of this Interpretation, if there are justified reasons, but if the defendant needs to entrust another defender, the people's court shall appoint another defender for him. "Article 165 stipulates:" If the defendant refuses the defender to defend him in court and requests to entrust another defender, he shall agree and announce the postponement of the trial. If the defendant requests the people's court to appoint another defense lawyer and the collegial panel agrees, it shall announce the postponement of the trial.
After the new court session, if the defendant refuses to entrust a new defender or a defense lawyer appointed by the people's court to appear in court again to defend him, the collegial panel shall handle it separately according to the circumstances:
(1) If the defendant is an adult, permission can be granted. However, the defendant may not entrust another defender, and the people's court may not appoint another defense lawyer. The defendant can defend himself.
(two) the defendant has one of the circumstances stipulated in Article 36 of this interpretation, and shall not be allowed.
If a defender or defense lawyer is entrusted or appointed in accordance with the provisions of Article 164 of this Interpretation and the first and second paragraphs of this Article, the time for preparing the defense shall not be included in the trial period from the date of postponing the trial of the case to the tenth day. "For these provisions, can be understood from the following aspects:
(1) Defendants who should not be appointed to defend (non-six categories) refuse to defend (should be allowed 1), including those who have been appointed to defend by the people's court due to economic difficulties and other reasons, and the defendants themselves. If the defendant refuses to defend for the first time, the people's court shall allow it; In this case, the defendant may appoint another defender, and the people's court shall allow the defendant to appoint another defender; If the defendant refuses again, it may be allowed, but he can only defend himself (if the defendant refuses to entrust a new defender or a defense lawyer appointed by the people's court to defend him again after the retrial, the collegial panel shall handle it according to the circumstances:
(2) If the defendant is an adult, permission can be granted. However, the defendant may not entrust another defender, and the people's court may not appoint another defense lawyer. The defendant may defend himself. )
(3) Defendants (6 kinds of people) should be appointed to defend. Defenders appointed by the people's court shall appoint defenders for the first time (1 should+1 should not or should not). If there is a justifiable reason, the people's court shall allow it; Without justifiable reasons, the people's court shall not allow it. With the permission of the people's court, the defendant may entrust another defender; If the defendant has not entrusted a defender, the people's court shall appoint a defender for him.
Refusing after the new session, for whatever reason, is not allowed. The number of times is limited to ensure that the trial can be conducted in time. Although the defendant has an independent, complete and unreasonable right to refuse to defend, the exercise of this litigation right is not absolute, especially in the frequency and effectiveness of refusing to defend, which should have different requirements and restrictions according to different situations. The purpose of limiting the number of times the defendant exercises the right to refuse defense is to ensure that the court's trial activities can be carried out in a timely and effective manner.
Therefore, the Supreme Court stipulated in the relevant judicial interpretation that in general cases, that is, when the defendant is a normal person, whether in the first-instance procedure or in the second-instance procedure, the defendant has the right to entrust another defender after refusing to continue his defense; If the defendant refuses to continue to defend other defenders, the court shall also allow it. However, after the defendant refuses the defender, he can no longer entrust the defender to defend, but can only defend himself in court. That is to say, in the specific trial procedure, the defendant can entrust the defense twice or refuse to defend twice, but only twice at most. Because the court of first instance must give the defender the necessary time to prepare his defense, this period should generally not be less than 10 days. It can be seen that on the issue of refusing to defend, if there is no limit on the number of times, the court trial activities will be delayed indefinitely. The purpose of restricting the legal effect of the defendant's right to refuse defense is to ensure that the defendant's core litigation right-the right to defense can be effectively implemented.
According to Article 34 of the Criminal Procedure Law and the relevant judicial interpretation of the Supreme Court, under special circumstances, that is, the defendant is a minor, a deaf-mute or a person who may be sentenced to death or has limited capacity, and the defendant and his legal representative have not entrusted a defender, the court shall designate a lawyer who undertakes the obligation of legal aid as a defender to defend the defendant.
If the defendant refuses to defend by a defender, whether entrusted by himself or appointed by the court, the court shall allow it if there are justified reasons, but the defendant or legal representative shall entrust a defender separately. If there is no entrustment, the court shall appoint a defense lawyer separately. Defenders and defendants who have been entrusted or appointed separately may not refuse again, with or without reasons and whether the reasons are justified or not, otherwise the refusal will be invalid. This is because the law has set up a compulsory defense system for specific defendants. Lawmakers assume that these special defendants, due to their own conditions, cannot correctly and comprehensively exercise their right to defense given by law. Refusing to defend and not wanting the defender's attitude can be said to be a manifestation of insufficient defensive ability. Therefore, the law stipulates that the court has the obligation to ensure that such defendants must be tried with defenders, otherwise, it will constitute a major illegal act in the proceedings. The court cannot exempt itself from the obligation to appoint a defense on the grounds of respecting the defendant's right to refuse to defend.