I. Concept
Lawyer's rights: it is the guarantee that lawyers enjoy independent practice according to law, and it refers to the rights and related protection given to lawyers in their practice activities by national laws.
Second, the rights of lawyers.
According to the provisions of China's Lawyers Law, the rights of lawyers in China mainly refer to lawyers' personal rights and lawyers' practice rights.
(A) the personal rights of lawyers
China's "Lawyers Law" stipulates: "Lawyers' personal rights are inviolable in their practice. "
Its contents should include that lawyers' personal freedom is not illegally restricted or deprived when practicing; Homes and offices are inviolable; Lawyers' reputation rights are inviolable, etc. Lawyers who violate personal rights shall be investigated for criminal responsibility according to the provisions of China's criminal law.
(2) Lawyers' right to practice.
The regulation of lawyers' right to practice is the premise to ensure lawyers' smooth practice. According to the Lawyers Law, lawyers enjoy the following rights:
1, marked to the right
Refers to the lawyer's right to consult the case files in the relevant organs according to the provisions of the procedural law when he is engaged in litigation business.
Article 30 of China's Lawyers Law stipulates that lawyers can consult materials related to cases in accordance with the provisions of the procedural law; Article 6 1 of the Civil Procedure Law stipulates that lawyers can consult the relevant materials of this case; Article 36 of the Criminal Procedure Law stipulates that defense lawyers may consult, extract and copy the litigation documents and technical appraisal materials in this case from the date when the people's procuratorate examines and prosecutes the case, and may consult, extract and copy the materials accusing the criminal facts in this case from the date when the people's court accepts the case. (According to Article 3 19 of the Criminal Procedure Rules of the Supreme People's Procuratorate, it is clear that litigation documents include procedural documents made by filing a case, detention warrants, decisions on approving arrest, arrest warrants, search warrants, prosecution opinions, etc. , not to file a case, take compulsory measures and reconnaissance measures, and submit it for review and prosecution. Technical appraisal materials include documents that record the appraisal situation, such as forensic appraisal, judicial spirit appraisal and material evidence technical appraisal, as well as appraisal conclusions formed by the appraisal of people, articles and other relevant evidence materials by qualified personnel. )
The right of lawyers to participate in litigation includes the following contents:
(1). With regard to access to case files, according to the Joint Notice of the Supreme People's Court, the Supreme People's Procuratorate, Ministry of Justice and Ministry of Public Security on Certain Specific Provisions on Lawyers' Participation in Litigation (1981April 27th): ① Lawyers, as defenders, agents and agents of civil cases, can go to relevant authorities to access relevant materials of this case. (2) The case files that lawyers can consult do not include the records of the judicial committee and collegial panel, and the clue materials related to other cases.
(2) When lawyers read papers, the relevant units shall give necessary convenience and provide places for lawyers to read papers.
(3) lawyers can extract and copy the papers, and the extracted materials are stored in the files of law firms.
(4) confidentiality.
2. Right to investigate and collect evidence
Refers to the lawyer's right to investigate cases and collect evidence in the course of practice.
Article 3 1 of the Lawyers Law stipulates: "When a lawyer undertakes legal affairs, he may conduct an investigation with the consent of the relevant unit or individual."
(1) Lawyers undertake legal affairs and enjoy the right to investigate and collect evidence, which is the guarantee for lawyers to carry out normal business activities.
(2) When investigating and collecting evidence from relevant units or individuals, lawyers shall obtain the consent of relevant units or individuals.
At this point, China's relevant laws are not harmonious. According to the Civil Procedure Law, lawyers representing litigation have the right to investigate and collect evidence. According to the Administrative Procedure Law, lawyers representing litigation can investigate and collect evidence from relevant organizations and citizens. Article 37 of the Criminal Procedure Law stipulates: "With the consent of witnesses or other relevant units or individuals, defense lawyers may collect materials related to this case from them, apply to the people's procuratorate or the people's court to collect and obtain evidence, or apply to the people's court to notify witnesses to testify in court. With the permission of the people's procuratorate or the people's court, and with the consent of the victim or his close relatives or witnesses provided by the victim, the defense lawyer may collect materials related to the case from them. "
(3) Lawyers' right to investigate and collect evidence is not mandatory.
Article 37 of the Criminal Procedure Law stipulates: (see the previous article). If a defense lawyer applies to a people's procuratorate or a people's court for collecting and collecting evidence, and the people's procuratorate or the people's court deems it necessary to investigate and collect evidence, the people's procuratorate or the people's court shall collect and collect evidence, and shall not issue a decision allowing lawyers to collect and collect evidence.
3. Right to meet and correspond
Refers to the lawyer who acts as the agent of the criminal suspect and the defender of the defendant in criminal cases and has the right to meet or correspond with the criminal suspect and the defendant in the supervision place.
Article 30 of the Lawyers Law stipulates: "When lawyers participate in litigation activities, they can meet and correspond with people whose personal freedom is restricted in accordance with the provisions of the procedural law." The Criminal Procedure Law stipulates that "defense lawyers can meet and correspond with criminal suspects and defendants in custody". The right to meet and communicate is an important right given to defense lawyers by law, which is stipulated in the legislation of most countries and regions in the world. China's regulations are very necessary for lawyers to perform their duties and protect the defendant's human rights. Lawyers' rights to meet and communicate with people whose personal freedom is restricted include the following rights:
(1) Only lawyers appointed by the people's court to participate in criminal proceedings can exercise this right.
(2) Lawyers should go through the prescribed procedures when meeting with people whose personal freedom is restricted: ① Lawyers should hold a special letter of introduction and a lawyer's practice certificate from a law firm when meeting with people whose personal freedom is restricted. When a lawyer meets a criminal suspect involved in state secrets in custody at the investigation stage, it shall be approved by the investigation organ. For cases that do not involve state secrets, lawyers do not need to be approved to meet criminal suspects. A case involving secrets cannot be denied because the investigation process needs to be kept secret.
(3) When a lawyer meets a person whose personal freedom is restricted, the place of detention shall be convenient, and an appropriate meeting room shall be designated. If guardianship is needed, the guardian should pay attention to avoid affecting the way in which the criminal suspect and the defendant fully exercise their right to defense. In the investigation stage, the lawyer meets with the criminal suspect in custody, and the investigation organ may send personnel to be present according to the situation and needs of the case. At the stage of examination, prosecution and trial, the case has been investigated, and the people's procuratorate and the people's court are not present when defense lawyers and other defenders meet with the criminal suspects and defendants in custody.
(4) Requirements for lawyers. When meeting with a person whose personal freedom is restricted, a lawyer shall abide by the relevant regulations of the place of detention, and prevent the person whose personal freedom is restricted from escaping, beating or committing suicide. After the meeting, the person whose personal freedom is restricted shall be handed over to the person in the detention place for imprisonment according to the regulations of the detention place. For the problems that need to be understood and paid attention to in detention, the place of detention shall be informed in time.
4. The right to appear in court is guaranteed.
Lawyers must have enough time to make preparations in litigation, otherwise it will inevitably make lawyers' work a mere formality and affect the protection of clients' legitimate rights and interests. According to the Ordinance, the rights of lawyers in court include:
(1) When the people's court determines the date of the hearing, it shall allow time for lawyers to prepare for the hearing.
(2) Because of the complexity of the case and the urgency of the opening date, the lawyer has the right to apply for an extension of the trial, and the people's court shall consider it within the time limit that does not affect the legal closing time.
(three) the people's court shall notify the lawyer to appear in court to perform his duties by notice, and shall not summon the lawyer by summons; The notice of the people's court hearing shall be served three days before the hearing at the latest.
(4) In the case of rescheduling the trial, appropriate preparation time should be set aside for the lawyer to appear in court for the second time.
5. Refuse the right of defense and agency.
It refers to the right of lawyers to refuse to act as legal agents such as criminal suspects, defendants or litigation cases under certain conditions.
Article 29 of the Lawyers Law stipulates: "A client may refuse a lawyer to continue to defend or represent him, or may entrust another lawyer as a defender or agent. After accepting the entrustment, a lawyer may not refuse to defend or represent without justifiable reasons, but if the entrusted matter is illegal, the client uses the services provided by the lawyer to engage in illegal activities or the client conceals the facts, the lawyer has the right to refuse to defend or represent. "
(1) Lawyers can exercise the right of refusal in defense or agency activities.
(2) The situations in which lawyers have the right to refuse defense and agency include: ① the entrusted matters are illegal; (2) The client engages in illegal activities by using the services of lawyers; (3) The client conceals the facts; (4) There are other legitimate reasons, such as the lawyer's physical and mental condition destroying the lawyer's ability to represent the client, and the client insulting the lawyer's personality and seriously damaging the good faith relationship between them.
According to1Notice of the Ministry of Justice on the development of legal aid on May 20, 1997, if the recipient fails to comply with the legal provisions and provide necessary cooperation as agreed in the legal aid agreement, the undertaker may refuse or terminate the provision of legal aid with the approval of the legal aid agency. Therefore, if a lawyer acts as an agent ad litem or a defender designated by the relevant institution as a client, the lawyer shall obtain the consent of the relevant institution when withdrawing from the agency or defending.
6, the court trial stage rights
According to the provisions of China's procedural law, lawyers mainly enjoy the following rights in the court trial stage:
(1), the right to ask questions. That is, during the trial, with the permission of the presiding judge, lawyers have the right to ask questions to witnesses, experts, inspectors or defendants.
(2) the right of cross-examination. That is, in the court investigation stage, lawyers have the right to put forward their own opinions on the physical evidence presented, the transcripts of witnesses who did not appear in court, the expert conclusions of appraisers, the transcripts of inquests and other documents as evidence; The right to cross-examine witnesses in court.
(3) the right to produce new evidence. That is, in court, lawyers have the right to apply for notifying new witnesses to appear in court, obtaining new evidence, and applying for re-appraisal or inspection.
(4) the right to participate in court debates. The lawyer's right to debate refers to the lawyer's right to debate and demonstrate controversial issues, case facts and applicable laws under the auspices of the people's court in the course of litigation. By exercising the right to debate, lawyers put forward and prove their opinions, refute the opinions of the other party, help the court verify the evidence, find out the case and make a correct judgment.
(5) Have the right to refuse to answer improper inquiries from the court.
7. The right to obtain a copy of the litigation documents in this case.
Refers to the lawyer's right to obtain copies of litigation documents, including indictment, protest, judgment, ruling, mediation, etc.
(1) In all public prosecution cases, the procuratorate must attach a copy of the indictment, which will be handed over to the defense lawyer by the court. If the procuratorate protests a case of first instance defended by a lawyer, it shall also send a copy of the protest to the court, which will hand it over to the defense lawyer.
(2) In criminal and civil cases in which lawyers participate in litigation, copies of judgments and rulings made by the court should be sent to the competent lawyers, regardless of the first or second trial.
(3) If the lawyer participates in the arbitration case, the copy of the award of the arbitration institution shall also be forwarded to the undertaker.
8. Exercise the right of appeal
It means that lawyers, with the consent or authorization of the parties, appeal to the people's court at the next higher level on their own behalf when they think that there is an error in the first-instance judgment of the local people's courts at all levels, and demand a retrial of the case.
(1) The lawyer's right to appeal is based on the consent or authorization of the parties;
(2) Lawyers have no independent right of appeal, but only appeal on their behalf.
9. If compulsory measures are taken against the public prosecutor and the law beyond the statutory time limit, they have the right to demand the cancellation of compulsory measures.
Article 75 of the Criminal Procedure Law stipulates that lawyers have the right to demand the cancellation of compulsory measures if they find that the people's courts, people's procuratorates and public security organs have taken compulsory measures against criminal suspects and defendants beyond the statutory time limit.
In judicial practice, it is very serious for judicial organs to abuse coercive measures or detain criminal suspects and defendants for an extended period of time. One of the duties of lawyers is to maintain and ensure the correct implementation of the law. Moreover, extended detention also violates the legitimate rights and interests of criminal suspects and defendants. In order to safeguard the legitimate rights and interests of the parties and the correct implementation of the law, lawyers have the right to request the cancellation of compulsory measures.
Section 2. Duty of lawyer
First, the meaning of lawyer's obligation
The so-called lawyer's obligation refers to the practice criteria that lawyers should or should not take as certain things in their practice activities.
According to the provisions of the Lawyers Law, lawyers' obligations include not only the obligation to restrict lawyers' practice conditions, but also the obligations that lawyers should bear in their business activities.
Second, the obligation of lawyers.
(A) the obligation to limit the practice conditions of lawyers
That is, the law imposes a certain degree of obligation on lawyers with specific identities to restrict their freedom of practice.
Article 36 of the Lawyers Law stipulates that a lawyer who has served as a judge or prosecutor shall not serve as an agent ad litem or defender for two years after leaving the people's court or people's procuratorate.
This provision is aimed at lawyers who have served as judges and prosecutors. Because their previous work often has a specific connection with the relevant courts and procuratorates, in order to avoid the occurrence of relationship cases and human cases and safeguard the reputation of lawyers, the Lawyers Law has made such a provision.
(2) Article 13 of the Lawyers Law stipulates that the current staff of state organs shall not concurrently serve as practicing lawyers. Lawyers are not allowed to practice law while serving as members of the Standing Committees of People's congresses at all levels.
(3) According to the spirit of the reply of the Ministry of Justice on May 3 1985 on whether NPC deputies and local people's congresses at all levels can serve as part-time lawyers, lawyers who serve as deputies to people's congresses at all levels but do not serve as members of the Standing Committees of people's congresses at all levels can practice law.
This provision is mainly to safeguard the legitimate rights and interests of the parties. Many countries in the world have similar regulations on this.
(2) the lawyer's obligation to the client
The Lawyers Law stipulates the obligations of lawyers to clients as follows:
1. After accepting the entrustment, the lawyer shall not refuse to defend or represent without justifiable reasons. However, if the entrusted matter is illegal, the client uses the services provided by the lawyer to engage in illegal activities or the client conceals the facts, the lawyer has the right to refuse to defend or represent him. (Article 29 means that defense or representation shall not be refused without justifiable reasons)
Reason: ① The relationship between lawyer and client is contractual. As a party to a contract, a lawyer shall not terminate the entrustment contract at will unless there are legal reasons. ② Refusing to defend at will directly damages the rights and interests of the client. Under normal circumstances, after the parties or their relatives are prosecuted by the judicial organs, they need lawyers to provide defense. After accepting the entrustment, lawyers have to do a lot of things, and they have to finish them within the statutory time limit, so there is not enough time. If the lawyer refuses to defend at will and forces the client to change his defender, it will lose the lawyer's working time before the trial and directly damage the rights and interests of the defendant and the client. (3) A lawyer may refuse to defend or represent: the entrusted matter is illegal, the client engages in illegal activities by using the services provided by the lawyer, or the client conceals the facts.
2. A lawyer may not act as an agent for both parties in the same case. (Article 34)
(1) It is precisely because the interests of the two parties in the same case are relatively irreconcilable that disputes arise. It is difficult for lawyers to guarantee fair agency affairs when accepting the entrustment of the two parties with common interests. As an agent, a lawyer should be loyal to the client and not do anything that harms or may harm the rights and interests of the client. (3) It should be emphasized that a lawyer may not act as the agent of both parties at the same time or successively in the same case, whether it is the first instance or the second instance. In addition, different lawyers of the same law firm may not act as agents for both parties in the same case. The reason can refer to the relationship between lawyers and law firms. (On February 26th, 2002, all china lawyers association revised and approved by the Ministry of Justice, Chapter V, Article 28 of the Code of Professional Ethics and Practice Discipline of Lawyers stipulates that a lawyer shall not act as the agent of both parties in the same case. The same law firm may not represent both parties to the litigation, except that there is only one law firm in remote areas. )
3. Lawyers shall not use the convenience of providing legal services to seek disputed rights and interests for their clients, and shall not accept the property of the other party. (Article 35, paragraph 2)
(1) Lawyers perform their duties to solve disputes between parties. Lawyers should not intervene in the disputed rights and interests of the parties, let alone engage in agency activities for the purpose of seeking the disputed rights and interests of the parties. (2) Lawyers should be conscientious and serve their clients faithfully. Accepting the property of the other party who has a conflict of interest with the client often leads the lawyer to give up the interests of the client.
4. Lawyers should keep state secrets and business secrets of the parties they know in their practice activities, and may not disclose the privacy of the parties. (Article 33, hereinafter referred to as confidentiality obligation)
(1) State secrets refer to matters that are related to national security interests and cannot be disclosed within a certain period and scope.
(2) Trade secrets refer to technical information and business information that can bring economic benefits to the obligee and are unknown to others.
Personal privacy: refers to personal life events related to citizens' personal reputation that I don't want to disclose.
It should be emphasized that lawyers still have the obligation of confidentiality after the end of the principal-agent relationship. (Duration: Long-term)
(3) Lawyers' obligations to courts and arbitration institutions
1. It is forbidden to provide false evidence, conceal facts or threaten or induce others to provide false evidence, conceal facts or prevent the other party from obtaining evidence according to law. (article 35, paragraph 1). 5)
(1) Lawyers should be loyal to the parties, judicial organs and arbitration institutions when providing litigation representation, defense and participating in arbitration activities. We should provide true evidence and facts based on facts and taking the law as the criterion. Do not deceive the court or arbitration institution, including making, submitting and presenting false evidence or concealing facts; Do not use threats or inducements to make others provide false evidence or conceal facts.
(2) A lawyer shall not interfere with the other party's right to obtain evidence and support his claim. Lawyers can cross-examine the authenticity of evidence with the other party in court, but they must not hinder the other party from obtaining evidence, including threatening or inducing insiders not to provide evidence or testify in court.
Article 38 of China's Criminal Procedure Law particularly emphasizes that defenders shall not help criminal suspects, defendants shall not conceal, destroy, forge evidence or collude with each other, and shall not threaten or induce witnesses to change their testimony or commit perjury or engage in other acts that hinder judicial procedures. Even Article 306 of the Criminal Law stipulates the crime of the defender's litigation agent destroying evidence, forging evidence and obstructing testimony. This kind of extremely severe punishment for lawyers can't be found in the laws of all countries. In practice, it has become a means for some judicial organs and personnel to retaliate against lawyers.
In connection with the confidentiality obligations of the above-mentioned lawyers, we believe that the law should specifically stipulate the obligation of lawyers to refuse to testify and the exemption of unintentional perjury. Fully protect the rights and interests of lawyers.
2. Lawyers shall not meet with judges, prosecutors and arbitrators in violation of regulations; Judges, prosecutors, arbitrators and other relevant staff members shall not be treated as gifts or bribes, and the parties shall not be instructed or induced to pay bribes. (Article 35, paragraphs 3 and 4)
Lawyers should study hard and master their due legal knowledge and service skills in practice, and provide good services for their clients by relying on their own professional quality. It is not allowed to influence the people who participate in the trial and arbitration by means prohibited by law, thus affecting the fair trial and judgment of the case, so as to achieve the expected purpose of the client.
(2) On the other hand, China's judges' law, arbitration law, prosecutors' law and other laws also impose corresponding restrictions on judges, prosecutors and arbitrators to avoid the occurrence of bending the law and perverting the law.
3. Lawyers shall not disturb the order of courts and arbitration tribunals, nor interfere with the normal conduct of litigation and arbitration activities.
According to the provisions of the Lawyers Law, lawyers' right to debate and defense should be guaranteed according to law. At the same time, lawyers should also abide by the order of courts and arbitration tribunals and conduct litigation and arbitration activities in accordance with the provisions of the procedural law and the arbitration law.
(4) Other businesses of lawyers.
The Law on Lawyers also stipulates other obligations of lawyers.
1. Lawyers shall not accept entrustment, charge fees from clients or accept property from clients without permission. (Article 35, para. 1)
This prohibition is not only the obligation of the lawyer to the client, but also the obligation of the law firm where the lawyer works.
A lawyer should practice in a law firm. It is impossible to practice across firms, including practicing in law firms and legal service institutions at the same time. (Article 12)
3. Lawyers shall not seek business by slandering other lawyers or paying referral fees. (Article 24)
Lawyers should pay taxes according to law. (article 23, paragraph 1). 2)
Paying taxes according to law is the obligation of every citizen and lawyer stipulated in our constitution. Lawyers and law firms shall pay taxes according to law. Lawyers' wages, salary income and service remuneration shall pay personal income tax.
5. Join the Bar Association and pay the membership fee. (Article 39)
Almost all countries implement compulsory membership system and strengthen industry self-discipline. However, in terms of membership dues, the proportion charged by China is obviously high, and individual membership dues and group membership dues are double levied. The membership fees of some local lawyers' associations have become one of the factors restricting the development of lawyers, and the expenditure and management of the membership fees collected are not standardized.
6. Lawyers must provide legal aid to clients in accordance with state regulations. (Article 42)
Legal aid, also known as legal aid and legal aid, is a judicial relief system widely used in many countries in the world. Chapter VI of China's Lawyers Law specifically stipulates legal aid, among which Article 42 explicitly requires lawyers to undertake legal aid obligations in accordance with state regulations, do their duty and provide legal aid to recipients.