Article 35 of the Criminal Procedure Law also stipulates the same content, but this provision applies not only to lawyers, but also to other non-lawyer defenders. For the legal reasons for lawyers' defense, I have summarized the following four categories. 1. Legal reasons for the defense of innocence or no criminal responsibility. In China's criminal law and criminal procedure law, there are three situations that can be defended as "innocent" or not criminally responsible: one is that the criminal law does not consider it a crime, for example, Article 3 of the Criminal Law is nullum crimen sine lege, Article 13 of the Criminal Law is obviously slightly innocent, and Article 16 of the Criminal Law is "force majeure" or "cannot". Presumption of innocence due to insufficient evidence in Item (3) of Article 162 of the Criminal Procedure Law; Second, the Criminal Law stipulates that people under the age of 14 in Article 16 of the Criminal Law shall not be held criminally responsible for committing crimes, and those over the age of 14 but under the age of 16 shall not be held criminally responsible for committing crimes other than eight crimes, such as intentional homicide, intentional serious injury or death, rape, robbery, drug trafficking, arson, explosion and poisoning, and Article 18 of the Criminal Law shall not be held criminally responsible for crimes committed by completely mentally ill or intermittently mentally ill people. Third, the criminal law will not pursue it. For example, Article 87 of the Criminal Law stipulates that the prosecution shall not be pursued after the expiration of the limitation period, and Article 15 (4) of the Criminal Procedure Law stipulates that if the victim of a private prosecution case does not prosecute or withdraws the prosecution, it shall not be pursued. 2, lighter, mitigated or exempted from punishment defense reason is legal. As far as the criminal responsibility ability of the criminal subject is concerned, there are: people who are over 14 years old but under 18 years old, mentally intermittent mental patients, physically deaf and blind, etc. Subjectively, the less vicious ones are: excessive defense, excessive emergency avoidance, preparation of crime, attempted crime, and suspension of crime. In terms of criminal functions, there are: accomplice and coerced accomplice; After committing a crime, the performance of the crime is: surrender, meritorious service, etc. In addition, there are some special provisions, such as article 10 of the criminal law, which stipulates that those who have been punished abroad can be exempted or mitigated; Article 37 of the Criminal Law stipulates that if the circumstances of the crime are minor and there is no need to be sentenced to punishment, the punishment may be exempted; Article 49 of the Criminal Law stipulates that the death penalty is not applicable to persons under the age of 18 at the time of committing a crime or women who are pregnant at the time of trial. 3. Legal reasons for the defense of misdemeanor. Through the argument between this crime and that crime, the nature is changed, and the felony is argued as a misdemeanor, and finally the viewpoint that crime is lighter than defense is put forward. There are mainly: first, subjective felony becomes misdemeanor, such as intentional homicide becomes manslaughter; Second, a single subject felony becomes a misdemeanor, for example, the crime of corruption by public officials is the crime of embezzlement by non-public officials; Third, a single subject becomes a dual subject. For example, crimes committed by natural persons are divided into unit crimes. The punishment for unit crimes in China is to apply property punishment to units, while the punishment for natural persons is reduced by one grade, especially without the death penalty. Fourth, the time difference between crimes is light. Article 12 of the Criminal Law stipulates that if a crime is committed before this time, it shall be dealt with according to the principle of giving a lighter punishment to the old, with the implementation date of the revised Criminal Law as the boundary +0997 65438+ 101; Fifth, the crime in multi-person crime is light. As mentioned above, * * * is an accomplice or coerced accomplice in a crime or criminal group; Sixth, the crime of several crimes is light. According to the principle of combined punishment for several crimes, several crimes are combined and punished as one crime, so as to achieve the purpose of light crime and light punishment. 4, pay attention to the defense reasons and heavier punishment. China's criminal law clearly stipulates that the circumstances that should be severely punished are: the instigator of "instigating a person under the age of 18 to commit a crime" as stipulated in Article 29 of the Criminal Law and the recidivist as stipulated in Articles 65 and 66 of the Criminal Law. In practice, prosecutors also demand heavier punishment as appropriate: (1) The ringleader of a criminal group is the relative of the principal offender; (2) The instigator is related to the instigated; (3) Recidivism is relative to incidental offense; (4) Compared with the first offender, a person who has received criminal punishment commits a crime again (does not constitute a recidivist); (5) Refusing to truthfully confess the crime; (6) Refusing to return stolen goods or explaining the whereabouts of stolen money and goods. Article 28 of China's Lawyers Law stipulates: "When a lawyer acts as a defender of a criminal case, he shall provide materials and opinions to prove the innocence, lighter or mitigated criminal responsibility of the criminal suspect and defendant according to facts and laws, and safeguard the legitimate rights and interests of the criminal suspect and defendant". Almost all criminal cases in our country will be tried by defense lawyers. The first prerequisite for the establishment of the relationship between lawyer and client is that the parties to the case have written a power of attorney. In order to protect the rights and interests of the parties, lawyers must try their best to understand the case before writing the defense.
Legal objectivity:
Article 33 of the Criminal Procedure Law: In addition to exercising the right of defense, a criminal suspect or defendant may entrust one or two persons as defenders. The following persons may be entrusted as defenders: (1) lawyers; (2) A person recommended by a people's organization or the unit to which the criminal suspect or defendant belongs; (3) Guardians, relatives and friends of criminal suspects and defendants. A person who has been sentenced to punishment according to law or deprived of or restricted personal freedom shall not act as a defender.