Article 36 of the Criminal Procedure Law stipulates that legal aid institutions may send lawyers to be on duty in people's courts, detention centers and other places. The criminal suspect and the defendant did not entrust a defender.
If the legal aid institution fails to appoint a lawyer to defend it, the lawyer on duty shall provide legal advice, suggestions on procedure selection, applications for changing compulsory measures and suggestions on handling cases for the criminal suspect and defendant.
Courts, procuratorates and detention centers shall inform criminal suspects and defendants of their right to meet with lawyers on duty, and provide convenience for criminal suspects and defendants to meet with lawyers on duty.
(1) nature
1, the duty lawyer system is an important supplement to China's defense system.
2. The lawyer on duty helps criminal suspects and defendants to defend themselves better, which is an important supplement to entrusted defense and legal aid defense, and belongs to the necessary minimum legal help provided to defendants in nature.
3. The duty lawyer system is an important part of the legal aid system in China.
(ii) Scope of application
1. Preconditions for lawyers on duty to provide legal aid: criminal suspects and defendants have not entrusted defenders, and legal aid agencies have not appointed lawyers to defend them.
2. The scope of application of the duty lawyer system is not limited to the lenient system of pleading guilty, but should cover all cases in which criminal suspects and defendants have no defenders at all stages of litigation.
(3) Status
The lawyer on duty is not a defender of a specific case, but a legal helper. He does not provide defense services in court, nor is he the defender of criminal suspects or defendants.
(4) Responsibility
1. Providing legal advice to criminal suspects and defendants
2. Proposal for scheme selection
3. Apply for change of compulsory measures
4. Put forward opinions on handling cases.
5. The criminal suspect shall be present when signing the confession and repentance.
In the case of pleading guilty and admitting punishment, the lawyer on duty shall give opinions to the people's procuratorate on the suspected criminal facts, charges and applicable legal provisions, suggestions for lightening, mitigating or exempting punishment, applicable procedures for hearing the case after pleading guilty and admitting punishment, and be present when the criminal suspect signs the statement.
6, guide and help criminal suspects, defendants and their close relatives to apply for legal aid, and hand over the application materials.
7. Acting as an agent for complaints and accusations of extorting confessions by torture or illegally obtaining evidence.
8. Access to files: From the date when the procuratorate investigates and prosecutes a case, it can access the materials and understand the case.
Article 12 of the Guiding Opinions on Applying the System of Pleading Guilty and Accepting Punishment with Leniency and Article 296, paragraph 2 of the the Supreme People's Procuratorate Rules stipulate that the lawyer on duty can consult the case file and know the case from the date when the people's procuratorate examines and prosecutes the case.
The people's courts and people's procuratorates shall provide convenience for lawyers on duty to consult the files.
(5) Stationing place
Legal aid institutions can send lawyers to be on duty in courts, detention centers and other places.
(6) Guarantee
1. The court, procuratorate and public security organ shall inform the criminal suspect and defendant of their right to obtain legal aid from the lawyer on duty.
2. If a criminal suspect, criminal defendant and their close relatives request legal help, the court, procuratorate and public security organ shall notify the lawyer on duty to provide legal help.
(7) Obligations
1, the lawyer on duty shall not mislead the litigation behavior of the parties, and it is strictly forbidden to accept property, and it is strictly forbidden to take advantage of his position to solicit the source of the case, introduce the paid service of the lawyer and other acts that violate the work discipline of the lawyer on duty.
2. The lawyer on duty shall keep the state secrets, business secrets and the privacy of the parties he knows in his work according to law, except for criminal facts and information that endanger national security, public safety and seriously endanger the personal safety of others that are being prepared or implemented by criminal suspects, criminal defendants or others.