(1) The existence of criminal lawyers is conducive to the establishment of the litigation mode of criminal litigation in China, the balance of rights between the prosecution and the defense, the checks and balances between the prosecution and the defense, and the neutral judgment of the court.
The antagonistic ability of criminal defense lawyers can make the prosecution, defense and trial form an "isosceles triangle" litigation structure in criminal litigation defense, thus forming mutual constraints between the prosecution, defense and trial. The "isosceles triangle" litigation structure represents the litigation mechanism of separation of prosecution and defense, equality between prosecution and defense, and judge-centered. On the static level, the equal confrontation between the prosecution and the defense is the basis of this litigation mechanism. The neutrality of judges is the pillar of litigation mechanism. On the dynamic level, the litigation activities of the prosecution and the defense not only form a horizontal competitive force between the prosecution and the defense, but also have a vertical binding force on the judge's judgment activities, that is, the judge should form a core conviction of the facts of the case based on the competitive activities of the prosecution and the defense, and make a fair judgment within the scope of the litigation requests of the prosecution and the defense. Moreover, the horizontal reaction force and the vertical binding force constitute the internal equilibrium state of the isosceles triangle litigation structure, and the litigation procedure conforming to this state not only meets the basic requirements of procedural justice, but also ensures the realization of substantive justice and gives consideration to judicial efficiency.
(two) the existence of criminal defense lawyers can better protect the rights of the parties, save the litigation costs of the parties, and improve the efficiency of the parties to participate in litigation. A reasonable and scientific procedure is to accomplish as many tasks as possible with as little investment as possible, and at the same time reduce the cost of misjudgment. Shortening the closing cycle will inevitably reduce the judicial input including manpower, material resources and financial resources. At the same time, by improving the lawyer's right to meet, investigate and collect evidence and read papers in legislation, unnecessary losses caused by difficulties in meeting, investigating and collecting evidence and reading papers can be avoided. At the same time, it avoids the occurrence of unjust, false and wrong cases, and also avoids the defendant's complaints and appeals, that is, it reduces the error cost and ethical cost, effectively saves the national judicial resources and improves the litigation efficiency.
To sum up, only criminal defense system can make the defense have the power to compete with the prosecution, highlight the defensive and actionable nature of the current trial method, give full play to the defense function, effectively use and rationally allocate the country's judicial resources, reduce litigation costs, improve litigation efficiency, and effectively protect the legitimate rights and interests of defendants.
The main work of a lawyer as a defender
1. At the investigation stage, criminal defense lawyers provide legal aid to criminal suspects. After the public security organs, people's procuratorates and other investigating legal organs interrogate the criminal suspect for the first time or take compulsory measures, the law firm can accept the employment of the criminal suspect or his relatives, appoint lawyers to meet the criminal suspect, and criminal defense lawyers can provide legal advice and represent their complaints and accusations. If the suspects are detained, they can apply for bail pending trial.
2. In the stage of examination and prosecution, criminal defense lawyers act as defenders or agents ad litem. After a criminal case is transferred to the people's procuratorate for examination and prosecution by the investigation organ, the lawyer may accept the entrustment of the criminal suspect himself or his relatives and friends as a defender; The victim, his legal representative or close relatives, and the parties to a civil lawsuit may be entrusted as agents ad litem. In the stage of examination and prosecution, lawyers who act as defenders can consult, extract and copy relevant materials of the case, meet or correspond with criminal suspects, investigate and collect materials related to the case, and put forward opinions on defense or agency. In the stage of examination and prosecution, defense lawyers have the right to request the release or change of compulsory measures according to law and obtain bail pending trial.
3. At the trial stage, criminal defense lawyers act as defenders of public prosecution cases in the first and second instance. At this stage, lawyers have the right to go to the people's court to consult, extract and copy the case materials, meet with the defendants in custody, investigate and collect the evidence materials related to the case according to the actual situation, apply to the people's court to inform witnesses, experts and producers of inspection records to testify in court, apply for re-appraisal, participate in court investigations and express their defense opinions. After the judgment of first instance, you can meet the defendant, listen to his opinions on the content of the judgment and whether to appeal, and give legal help.
4. At the trial stage, criminal defense lawyers act as litigation agents for the victims of public prosecution cases. An attorney shall cooperate with the public prosecutor, exercise the appeal function according to law, argue with the defendant and his defender, and put forward legal opinions on conviction and sentencing on behalf of the victim.
5 as agents ad litem or defenders of the parties to a private prosecution case. As the litigation agent of the plaintiff in a private prosecution case, he mainly acts as an agent to exercise the accusation function, support the accusation and refute the other party's defense point of view. The role as a defendant's defender in a private prosecution case is basically the same as that in a public prosecution case of first instance and second instance.
6. Acting as an agent ad litem of the parties involved in incidental civil litigation. An agent entrusted to act as the plaintiff in an incidental civil action shall write an incidental civil complaint on behalf of the client, clearly put forward the litigation request, investigate and collect evidence, argue with the other party in court, and safeguard the legitimate property rights and interests of the client.
7, as a defense lawyer for death penalty review cases.
8. Acting as an agent in appeal cases. A defense lawyer may accept the entrustment of the parties to the case or their legal representatives or close relatives, lodge a complaint against the criminal judgment that has taken legal effect, and request the people's court to revise the judgment through retrial according to law.
Legal basis: Article 39 of the Criminal Procedure Law allows defense lawyers to meet and correspond with criminal suspects and defendants in custody. Other defenders, with the permission of the people's courts and people's procuratorates, may also meet and correspond with criminal suspects and defendants in custody.
If a defense lawyer holds a lawyer's practice certificate, a law firm's certificate, a power of attorney or a letter of legal aid to ask for a meeting with the criminal suspect or defendant in custody, the detention center shall arrange the meeting in time, which shall not exceed 48 hours at the latest.
In criminal cases endangering national security and terrorist activities, defense lawyers should obtain permission from the investigation organ when meeting with the criminal suspect in custody during the investigation. The investigation organ shall notify the detention center of the above situation in advance.
When a defense lawyer meets a criminal suspect or defendant in custody, he can understand the case and provide legal advice. From the date when the case is transferred for examination and prosecution, the relevant evidence may be verified with the criminal suspect or defendant. Defense lawyers are not monitored when meeting with criminal suspects and defendants.
The provisions of paragraphs 1, 3 and 4 shall apply to the meetings and correspondence between defense lawyers and criminal suspects and defendants who are under surveillance.