First, 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.
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.
(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.
4. The right to appear in court is guaranteed.
(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.
(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.
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.
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.
Second, the obligation of lawyers.
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.
(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.
(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)
2. A lawyer may not act as an agent for both parties in the same case.
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.
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.
(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.
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.
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.
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.
3. Lawyers shall not seek business by slandering other lawyers or paying referral fees. (Article 24)
Lawyers should pay taxes according to law.
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.
6. Lawyers must provide legal aid to clients in accordance with state regulations.