The litigation status of defense lawyers is an important theoretical issue in criminal procedure law. The position of defense lawyer in litigation refers to the position of defense lawyer in the legal relationship of criminal procedure. Its specific orientation is related to the construction of litigation mode and the setting of specific litigation rights of defense lawyers. If the role of defense lawyer cannot be scientifically defined, the result will inevitably be the restriction of defense lawyer's rights. "(10) The key to this problem is whether the defense lawyer is the subject of criminal proceedings. In China, because the criminal procedure law does not clearly stipulate the litigation status of defense lawyers, theoretical circles have different views on this issue. One view is that the defense lawyer does not belong to the litigation subject, the main reason is that the litigation subject must have legal interests in the litigation results, must be the main undertaker of the basic functions of criminal proceedings, and must be able to decide the process of criminal proceedings. The subjects of criminal proceedings stipulated in China's Criminal Procedure Law refer to investigation organs, procuratorial organs, people's courts, private prosecutors, criminal suspects or defendants. Defense lawyers are practitioners authorized by the state to provide legal services to the society. He can neither represent the country nor participate in the litigation in his own name, and he has no legal interest in the outcome of the litigation and has nothing to do with interests. Lawyers, as defenders, participate in criminal proceedings according to the entrustment of criminal suspects and defendants or the designation of the court. Therefore, fundamentally speaking, the defense lawyer passively assists the defendant to perform the defense function. He has neither complete subject rights nor specific obligations. Therefore, it does not conform to the characteristics of the litigation subject and does not become the litigation subject, but the defense lawyer has an independent litigation status as a litigation participant.
In this regard, the author believes that in order to meet the requirements of modern democracy and the rule of law and promote the development of China's lawyer system and criminal litigation system, it is more appropriate to position defense lawyers as the subject of litigation. First of all, criminal procedure is a trinity structure of prosecution, defense and trial.
The defense in criminal proceedings mainly refers to the defense of lawyers in criminal proceedings. The defendants and criminal suspects themselves lack legal knowledge or are unable to investigate and collect evidence due to many restrictions such as detention. It can't be a defense in the three structures of prosecution, defense and trial stipulated in the criminal procedure law. Only a lawyer as a defender can become a complete defense. If there is no defense lawyer's participation or participation but no complete rights, criminal proceedings will inevitably be incomplete and unhealthy. Second, according to the provisions of China's Criminal Procedure Law, a defense lawyer refers to a person entrusted by a criminal suspect or defendant or designated by a people's court to participate in litigation activities. However, once defense lawyers participate in criminal proceedings, they conduct defense activities based on their own understanding of the facts of the case and the applicable law, not on the will of the defendant. Therefore, the defense lawyer is not a person who simply serves the defendant. Thirdly, establishing the main position of defense lawyers in criminal proceedings can expand the rights enjoyed by defense lawyers and promote their defense functions. In addition, judging from the reform and innovation of the current litigation mechanism, the reform of the trial mode is to achieve the balance between the prosecution and the defense. If the defense lawyer cannot become an independent litigation subject, this balance cannot be achieved. Therefore, we should establish the subject status of defense lawyers in criminal proceedings as soon as possible through legislation. Of course, although the subject status of defense lawyers is clearly defined, lawyers should not defend for the purpose of protecting the legitimate rights and interests of defendants. "When the defendant's opinion is inconsistent with the defense lawyer, the lawyer should not go against the defendant's will. Lawyers must obtain the consent of the defendant if they want to defend the opinions of the parties. "