According to the provisions of China's Criminal Procedure Law, if a criminal suspect or defendant fails to entrust a defender and a legal aid institution fails to entrust a defender, the lawyer on duty shall act as the defender.
Criminal Procedure Law of the People's Republic of China
Thirty-sixth legal aid institutions can send lawyers on duty in people's courts, detention centers and other places. If the criminal suspect or defendant does not entrust a defender or the legal aid institution does not entrust a lawyer to defend him, the lawyer on duty will provide legal assistance to the criminal suspect or defendant, such as legal consultation, suggestions on procedure selection, application for changing compulsory measures, and suggestions on handling cases.
The people's courts, people's procuratorates and detention centers shall inform the criminal suspects and defendants that they have the right to meet the lawyers on duty, and provide convenience for the criminal suspects and defendants to meet the lawyers on duty.
Who can be a defender?
According to the provisions of the Criminal Procedure Law, the following persons can act as defenders of criminal suspects and defendants.
1, lawyer. Refers to the practitioners who have obtained the lawyer's practice certificate according to law, accepted the entrustment or assignment, and provided legal services for the parties;
2, people's organizations or criminal suspects and defendants recommended by the unit;
3. Guardians, relatives and friends of criminal suspects and defendants. "Guardian" refers to the person who is responsible for the supervision and protection of the person, property and other legal rights of minors and mental patients, such as parents of minors and spouses of mental patients. The meaning of "relatives and friends" is relatively broad, referring to the relatives and friends of criminal suspects and defendants. Relatives here refer not only to close relatives, but also to distant relatives. It is stipulated that "relatives and friends" can be used as defenders, mainly considering that these people have a certain relationship with the client and are trusted by criminal suspects and defendants.
A person who cannot act as a defender
According to the provisions of the Criminal Procedure Law, the following persons may not act as defenders of criminal suspects and defendants.
1, the person who is executing or is in the probation period of probation or parole;
2. Persons deprived or restricted of personal freedom according to law;
3. Persons without capacity or with limited capacity;
4. People's courts, people's procuratorates, public security organs, state security organs and prison staff;
5. People's jurors;
6. People who have an interest in the trial result of this case;
7. Foreigners or stateless persons.
Note: The above-mentioned persons in items 4, 5, 6 and 7 may be allowed if they are guardians or close relatives of the defendant and are entrusted by the defendant to act as defenders.
8. Judges and other staff members of the people's court shall not act as lawyers as defenders within two years after leaving the people's court.
9. After leaving the court, judges and other staff members of the people's court may not act as defenders of cases tried by the court of first instance, except as guardians or close relatives of the defendant.
10. Spouses, children or parents of judges and other staff members of the people's courts shall not act as defenders of cases tried by their courts, except as guardians or near relatives of the defendants.
These are Bian Xiao's answers to relevant legal questions. According to the provisions of China's Criminal Procedure Law, if a criminal suspect or defendant fails to entrust a defender and a legal aid institution fails to entrust a defender, the lawyer on duty shall act as the defender.