Criminal defense system, which originated in western countries, has been popularized all over the world. Its gestation and formation means that a country has a new height in thinking about the spirit and significance of criminal justice. Criminal defense system is not only the need to protect the rights of criminal suspects and defendants, but also the inevitable requirement of judicial justice and legal specialization. The degree of its function realization shows the development level of a country's criminal rule of law in a certain sense. With the continuous progress of the legal system in China, criminal defense has long been an important legal function of criminal justice in China. However, due to many practical and historical reasons, there are quite outstanding problems in criminal defense system's legislative and judicial practice. Because of its imperfection, lawyers will inevitably not encounter new problems and difficulties in handling criminal cases. However, China has been on the road of constantly improving the lawyer's defense system. 12 In March, the National People's Congress passed the new Criminal Procedure Law, which was officially implemented on March/3 1 day. The new criminal procedure law passed this time effectively links the relevant provisions of criminal defense system with the new lawyer law, and basically solves the conflict of law application. However, whether the perfection of legislation can fundamentally solve the problems in judicial practice needs further analysis at the practical level. Below, we mainly study and discuss the contents of the lawyer's defense system revised by the new criminal procedure law.
First, the reform of lawyer's defense system in the new criminal procedure.
(1) The right of defense lawyers to intervene in time is advanced.
1996 article 33 of the criminal procedure law stipulates that "the criminal suspect has the right to entrust a defender from the date when the case is transferred for examination and prosecution", which excludes the defense system from the investigation procedure. In the investigation stage, the criminal suspect has neither the right to silence nor the help of a lawyer. Faced with the great pressure of constant interrogation by the investigation organ and the possibility of extorting a confession by torture, he makes a guilty confession. At the stage when the criminal suspect should be given the right of defense, he was deprived of this right and missed the best opportunity to protect human rights. In the new criminal procedure law, this article is amended as: A criminal suspect has the right to entrust a defender from the day when he is interrogated for the first time by the investigation organ or takes compulsory measures. This amendment enables lawyers to participate in litigation as defenders in the investigation stage, which can objectively form effective external supervision and restriction on investigation activities, urge the investigation organs to collect evidence comprehensively, prevent subjective one-sidedness, and minimize the occurrence of illegal detention, extorting confessions by torture, pointing fingers and inducing confessions, thus promoting the case to achieve the ideal state of substantive justice and procedural justice.
(2) The criminal legal aid system has been strengthened.
The criminal litigation assistance system is established to guarantee the principle of equality before the law, and it is an irreplaceable and important means to realize judicial justice and protect basic human rights in a modern country ruled by law. This amendment to the Criminal Procedure Law conforms to this concept and expands the scope of criminal legal aid. First, the application stage of legal aid is advanced from trial to investigation and prosecution, which makes the time of defense system advance as a whole; The second is to expand the scope of application of legal aid. Article 6 of the amendment stipulates that if a criminal suspect or defendant is a mental patient who is blind, deaf, dumb or has not completely lost the ability to identify or control his own behavior, and has not entrusted a defender, the people's court, the people's procuratorate and the public security organ shall notify the legal aid institution to appoint a lawyer to defend him. If a criminal suspect or defendant may be sentenced to life imprisonment or death without entrusting a defender, the people's court, the people's procuratorate and the public security organ shall notify the legal aid institution to appoint a lawyer to defend him. The above two provisions have expanded the beneficiaries of criminal defense system, enabled more criminal suspects and defendants to enjoy the judicial resources of the country, fully embodied the spiritual connotation of safeguarding human rights, avoided the occurrence of unjust, false and wrong cases, and promoted the progress of the rule of law civilization in China.
In addition, this amendment to the Criminal Procedure Law also clarifies that public security organs, people's procuratorates and people's courts, like them, have the obligation and responsibility to notify legal aid institutions to assign lawyers to provide legal aid. This article clarifies the obligation of public security organs to inform and provides legal support for protecting more people's right to defense.
(C) the content of the defense system has been improved.
1, the right to meet independently
In actual case handling, lawyers meet with criminal suspects in custody at the investigation stage, which is subject to many restrictions. Many local investigation agencies require lawyers to apply in advance and report to the investigation agency for approval, but the investigation agency will hold a negative attitude towards the meeting. In practice, investigators will actually change "arrangement" into "approval", and lawyers and criminal suspects can't talk normally. The revised Criminal Procedure Law guarantees the meeting time and meeting method. In terms of time, the amendment stipulates that the defense lawyer shall meet with the criminal suspect and defendant in custody, and the detention center shall arrange the meeting in time, which shall not exceed 48 hours at the latest. In terms of methods, this amendment to the Criminal Procedure Law has absorbed the provisions in the Lawyers Law that lawyers can meet criminal suspects in custody, defendants can hold three certificates, and they are not monitored during the meeting, and canceled the provisions that lawyers need to be approved when meeting in cases involving state secrets. Instead, "cases involving state secrets" are clearly divided into three categories: crimes endangering state security, crimes of terrorist activities and particularly serious bribery crimes, avoiding the situation that "cases involving state secrets" appeared in the past because of unclear meanings.
The determination of the lawyer's right to meet independently in the new criminal procedure law ensures the timely and smooth meeting between lawyers and criminal suspects, enables criminal suspects to fully and effectively exercise their right to defense, and is conducive to the realization of judicial justice. It is also the requirement of international criminal defense standards and the common practice of criminal procedure systems in various countries to ensure that criminal suspects, defendants and defense lawyers can meet without obstacles.
2. The right to read papers
The right to read papers is an important right of defense lawyers. Only by fully exercising the right to read papers can defense lawyers fully understand the case and defend on this basis. 1996 criminal procedure law stipulates that the scope of consulting, extracting and copying by defense lawyers is limited to the litigation documents and technical appraisal materials provided by the public prosecution agency from the date when the people's procuratorate examines the prosecution case, rather than the most original materials in this case, which greatly limits the defender's comprehensive understanding and mastery of the case. In order to solve this problem, the new criminal procedure law stipulates that the scope that defense lawyers can consult, extract and copy is extended to all files. The expansion of the scope of marking can ensure that defense lawyers can analyze and interpret the case more carefully, and can better exercise the right of defense and effectively safeguard the litigation rights of criminal suspects and defenders.
3. Right to investigate and collect evidence
Although the new criminal procedure law has not clearly changed the lawyer's right to investigate and collect evidence, it is not difficult to infer that the lawyer's right to investigate and collect evidence has also advanced to the investigation stage through systematic investigation of the new criminal procedure law. According to the revised Article 33, in the investigation stage, lawyers are no longer just "people who provide legal help" but "defenders", so as defenders, of course, they have the right to investigate and collect evidence. In addition, Article 40 of the revised Criminal Procedure Law stipulates that if the evidence collected by the defender shows that the suspect is not at the scene of the crime, has not reached the age of criminal responsibility, and belongs to a mental patient who is not criminally responsible according to law, he shall promptly inform the public security organ and the people's procuratorate. This article further explains that defenders have the right to investigate and collect evidence at the investigation stage.
Second, the problems existing in the defense system in the new criminal procedure law.
The new criminal procedure law has made major reforms to the relevant provisions of the defense system. These reforms will undoubtedly play a positive role in strengthening the democracy and scientificity of criminal proceedings in China, improving the quality of defense and earnestly safeguarding the legitimate rights and interests of criminal suspects and defendants. However, we should also see that there are still some defects in some provisions of the new criminal procedure law on the right to defense, mainly in the following points:
(A) the specific meaning of legal terms about the defense system is not clear.
Although some provisions in the new Criminal Procedure Law have been revised and improved, there are still some difficulties in implementation due to unclear meanings, and corresponding implementation rules need to be formulated to be further clarified. The following is explained from several places:
First, the right to read papers. Article 38 of the new criminal procedure law stipulates the right of defense lawyers to consult, extract and copy the case file, but it does not clarify the connotation and extension of "case file" Does the material referred to here include all the case files, including not only the evidence materials for accusing the crime, but also the evidence materials for proving the innocence and light crime of the suspect? Under the situation that the investigation measures and means of investigation organs are becoming more and more complete, most of the evidence in almost all criminal cases is collected and fixed by investigation organs. Even evidence that is beneficial to criminal suspects is often collected and mastered by investigation organs. If the investigation organ does not include the evidence that can prove the defendant's innocence or light crime in the evidence file, and if the procuratorial organ extracts the evidence when transferring it to the court, the defense lawyer will not have access to the evidence at all, which will have a great impact on the effective defense of the defense lawyer. Therefore, it is very important to define the specific scope of the case file in judicial practice, which has a lot to do with the exercise of lawyers' right of defense and the protection of defendants and criminal suspects' legal litigation rights.
Second, the right not to be monitored during the meeting. In order to further protect the right of defense lawyers to meet, the fourth paragraph of Article 37 of the new Criminal Procedure Law stipulates: "Defense lawyers shall not be monitored when meeting with criminal suspects and defendants." This provision is also required by the United Nations criminal justice standards. Article 8 of the United Nations Basic Principles on the Role of Lawyers stipulates: "All persons who are arrested, detained or imprisoned should have sufficient opportunities, time and facilities to receive visits and contacts from lawyers and negotiate without delay, eavesdropping or inspection, and keep them completely confidential. Such consultation can be conducted within the range that law enforcement officers can see and hear. "
However, there are different opinions on the explanation of "not being monitored". Some commentators believe that "not being monitored" only means that the conversation between defense lawyers and criminal suspects and defendants should not be monitored by technical means. Some scholars believe that "not being monitored" includes not using technical means to monitor and not allowing investigators to be present. First of all, the new Criminal Procedure Law deletes the provision in Article 96 of the original Criminal Procedure Law that "the lawyer meets the criminal suspect in custody, and the investigation organ may send personnel to be present according to the situation and needs of the case", in other words, it cancels the power of the investigation organ to send personnel to be present. Secondly, limiting the interpretation of "not being monitored" to not monitoring conversations through technical means does not conform to the legislative spirit of this clause. Because the rule of "not being monitored" is to ensure the independence and confidentiality of the meeting between defense lawyers and criminal suspects and defendants, which is conducive to establishing a relationship of mutual trust and eliminating the interference of external factors. What's the point of "not being monitored" if people can be sent to meetings without being monitored?
In order to ensure the practical implementation of this provision, the relevant judicial interpretation should not only clarify the meaning of "unmonitored", but also clearly stipulate the negative consequences of violating the "unmonitored" provision, that is, the evidence obtained by monitoring should be excluded according to the illegal evidence exclusion rule.
(2) There are too few compulsory, punishment and relief clauses in criminal defense system.
Many legal provisions in our country stipulate the general direction, but not the specific implementation content, which makes it difficult for most laws to be implemented entirely by the power of the legislature, but has to rely on a large number of legislative interpretations, judicial interpretations and internal documents of the judiciary. In the process of implementation, some legislative provisions have even been modified and shelved.
This time, China's newly revised criminal procedure law also has the same problem. Legally, the defense system focuses on solving key problems such as criminal legal aid, the right to meet, the right to read papers and the right to apply for investigation. However, the relevant rights enjoyed by defense lawyers in criminal proceedings are all given in the form of "declaration of rights" without a series of specific implementation provisions to guarantee, which makes the more abstract and general system declared in the law unable to be realized through operational rules. Similarly, regarding punitive clauses and relief clauses, the provisions in the new criminal procedure law are also seriously lacking. If there is no punitive clause, it is difficult to implement authorization norms and realize related rights, because infringement has no punitive consequences; If there is no remedy for the infringement of defense lawyer's right to defense, it will make this right unable to be truly implemented and enforced. Therefore, in order to better implement and apply the new criminal procedure law, we should pay attention to concretizing the contents stipulated by the law and implementing safeguard measures.
Third, suggestions to improve the defense system.
First of all, clarify the meaning of some legal terms.
The new criminal procedure law stipulates many litigation rights of defendants, criminal suspects and defense lawyers. However, due to the confusion of some legal terms and unclear boundaries, legal provisions are not well implemented in practice and rights are not well guaranteed. Therefore, in the future legislative revision or legal interpretation, the meaning of legal provisions should be specific and clear, in order to achieve better implementation effect of criminal litigation related laws in practice.
Secondly, formulate and improve the compulsory execution, punitive and relief provisions of the rights of criminal defense lawyers.
"Any advanced institutional arrangement cannot be realized automatically, but must be guaranteed by a series of specific implementation clauses, so that these abstract and generalized systems can be realized through operating rules." Taking the right of marking papers as an example, the new criminal procedure law can formulate clear implementation provisions, such as the scope and specific methods for lawyers to consult, extract and copy case files; Another example is to clearly stipulate the time when the procuratorial organ approves the lawyer's application for marking; If the procuratorial organ does not approve the lawyer's marking, the time for the lawyer to apply to the court for marking, etc. Compared with the enforcement clause, the penalty and relief clause in the new criminal procedure law aims to better protect the relevant rights granted to defense lawyers by legislation and make them be implemented and implemented in practice. For example, the detention center and the investigation organ refused to approve the lawyer's meeting without justifiable reasons, and the procuratorial organ refused the lawyer's marking. The new Criminal Procedure Law should establish some form of liability clause. When the above-mentioned investigation organs, procuratorial organs and judicial organs violate legal procedures and infringe on the procedural defense rights of defense lawyers, a procedural sanction system can be established to make the litigation acts such as evidence, public prosecution and judgment directly affected by procedural violations lose legal effect, so that lawyers whose defense rights have been infringed can get effective relief.
In a word, criminal defense system is the basic system of criminal procedure, and the development history of criminal procedure can also be said to be the history of criminal defense system's continuous strengthening and improvement. Historically, the development of criminal defense system has experienced a tortuous process, from the impeachment litigation mode in slave society to the religious judgment litigation mode in feudal society, and then to the prosecution litigation mode in modern society. Up to now, the new criminal procedure law fully embodies the modern judicial concepts such as human rights protection, procedural justice, and the balance between prosecution and defense, and is effectively connected with the new lawyer law, which enables defense lawyers to realize the docking of litigation rights in reading papers and meeting, and at the same time expands the beneficiaries and scope of criminal legal aid, so that more suspects and defendants have the opportunity to obtain legal aid. These provisions are undoubtedly far-reaching and positive.
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