Abstract: After the promulgation and implementation of China's new Criminal Procedure Law 1996, some reforms have been carried out in the original criminal defense system, such as advancing the time for lawyers to intervene in criminal proceedings, determining the equal status of both the prosecution and the defense, and changing the incorrect practices of judges, such as "investigating first before judging" and "deciding first before sentencing". However, through several years' practice, we found that, besides these existing systems can't be well implemented, there are still some shortcomings, such as difficulty in meeting, difficulty in applying for changing compulsory measures, difficulty in marking papers for investigation and evidence collection, and difficulty in adopting lawyers' defense opinions. Therefore, in order to establish and form a complete criminal defense system, the author believes that the above-mentioned related deficiencies should be further improved in order to be in line with international standards.
Criminal defense system is an important part of modern national legal system. The continuous improvement of criminal defense system is an important symbol of scientific and democratic criminal procedure. 1996 After the revision of the Criminal Procedure Law, criminal defense system has developed to some extent. However, in practice, the defense system stipulated in the revised Criminal Procedure Law has exposed many shortcomings. The United Nations International Covenant on Civil and Political Rights (hereinafter referred to as the Covenant) clearly stipulates that the defendant's right to defense is a basic principle in criminal proceedings, and the Basic Guidelines on the Role of Lawyers (hereinafter referred to as the Guidelines) adopted by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders further refined the above rights. As a signatory to the Convention and the Standards, China should abide by the obligations of the Convention, respect the Standards, comprehensively and thoroughly implement the spirit of the Convention and the Standards, find out the shortcomings and gaps in criminal defense system and improve them.
First, the theoretical research of criminal defense system's concept.
(A) the concept of criminal defense system
The defense system is the general name of the measures and methods adopted by legislation to implement the defense principle [1]. The defense system originated from western society, and it has gone through three stages, namely, the embryonic stage of ancient Rome, the repression stage in the Middle Ages and the development stage after the bourgeois revolution. In China, the national defense system also experienced the development stages before and after the founding of the People's Republic of China and after the Third Plenary Session of the Eleventh Central Committee of the Party [2]. In feudal society, there was no defense system in China, and criminal proceedings were conducted by inquisitorial trial mode. In the Qing Dynasty, influenced by western ideas, the Qing Government enacted the Criminal and Civil Procedure Law of Qing Dynasty in 190 1, which stipulated the contents of lawyers' participation in litigation and gave the parties the right to hire lawyers to defend. However, in the Provisional Regulations on Lawyers and the Provisional Regulations on Lawyers Landing formulated by the National Government, separate regulations on lawyers began to appear. After the founding of People's Republic of China (PRC), the national defense system of new China has been developing continuously. 1954, the first constitution of new China stipulates that "the defendant has the right to defense", and the Organic Law of the People's Court stipulates that "the defendant may entrust a lawyer to defend him in addition to exercising the right to defense." This affirmed the defense system in legislation, and the lawyer system also developed, which was forced to be interrupted due to historical reasons. After the Third Plenary Session of the 11th CPC Central Committee, with the advancement of economic system reform and democratic construction, criminal defense system was restored in China. People's Republic of China (PRC) Criminal Procedure Law (1979) clearly defined criminal defense system, and later formulated a large number of judicial interpretations, replies and notices, further clarifying criminal defense system. 1March, 1996, the National People's Congress revised 1979 Criminal Procedure Law, so far.
(2) Classification of criminal defense
According to the current criminal procedure law, China's criminal defense can be divided into three categories, namely, self-defense, entrusted defense and designated defense. Among them, entrusted defense refers to the criminal suspect, the defendant himself or his close relatives, who entrust a person permitted by law, mainly a lawyer, to defend him in the form of an entrusted contract. This kind of defense is an important system content in criminal defense system. Designated defense means that the court appoints a lawyer to defend the defendant who has not entrusted a defender when encountering special circumstances stipulated by law.
Second, the status quo and shortcomings of criminal defense system in China
1997 the promulgation of the revised criminal procedure law really gives people a feeling of breeze, especially as a lawyer who plays a leading role in criminal defense. However, after a period of practice, people found that the relevant departments did not fully implement the provisions of the Criminal Procedure Law, but stood in the perspective of departmental interests and successively formulated "interpretations" beyond the law to safeguard departmental interests, which made the Criminal Procedure Law unable to be fully implemented and implemented, resulting in the current situation. From the lawyer's point of view, the author tries to summarize the current situation, shortcomings and defects in criminal defense system as "several difficulties", as follows:
First, it is difficult to meet. The revised Criminal Procedure Law advances the time for defense lawyers to intervene in the proceedings from the original seven days before the trial to the investigation stage, that is, Article 96 of the Criminal Procedure Law stipulates that "a criminal suspect may hire a lawyer to provide legal advice, complaints and accusations on his behalf after the first interrogation by the investigation organ or the day when compulsory measures are taken ... The entrusted lawyer has the right to know the suspected charges of the criminal suspect from the investigation organ and can meet the criminal suspect in custody." Article 1998 19 of the Provisions on Several Issues in the Implementation of the Criminal Procedure Law (the Supreme People's Court, the Supreme People's Procuratorate, the Ministry of Public Security, the Ministry of National Security, the Ministry of Justice and the Legislative Affairs Commission of the National People's Congress Standing Committee (NPCSC)) is further clarified. A meeting should be arranged within 48 hours. Lawyers who request to meet with major and complicated criminal suspects for organizing, leading, or participating in underworld organizations, organizing, leading, or participating in terrorist activities, or smuggling, drug crimes, corruption and bribery crimes shall arrange meetings within five days. "In this regulation, the word' should' is used in the interview about the lawyer's early intervention, and the relevant departments are required to make arrangements within 48 hours and 5 days. However, in practice, the relevant departments did not fully follow this practice, but they all had certain "reasons", as follows: First, various excuses (or the staff were too busy to have time, or the organizer was on a business trip, or the organizer was sick ...), and they delayed indefinitely, ranging from a week to ten days or even more than a month; Second, the interview with the criminal suspect under surveillance must be approved by the investigation organ. Although Article 24 of the "Regulations" of the three ministries and one committee of the two houses clearly points out that a criminal suspect who is under residential surveillance "does not need approval to meet a lawyer. "But in practice, it is more difficult for lawyers to meet because of the change of residential surveillance into disguised detention and the detention of criminal suspects in fixed places; Third, it is difficult for lawyers to meet with criminal suspects alone. In the investigation stage, lawyers meet alone, and the legislation has made some changes, that is, lawyers meet with criminal suspects in custody, and the investigation organ can send personnel to be present according to the situation and needs of the case. However, in practice, almost all cases are attended by staff, and lawyers are forbidden to meet alone. What's more, both the lawyers' meeting in the stage of examination and prosecution and the lawyers' meeting in the second instance are present, and it is forbidden to meet alone. This practice is contrary to the provisions of the "Regulations" of the three ministries and commissions of the two houses. Article 12 of the Regulations clearly stipulates that the people's procuratorate and the people's court are not present at the stage of examination, prosecution and trial, when the investigation of the case ends and the defense lawyers and other defenders meet the criminal suspects and defendants in custody; Fourth, lawyers are not allowed to meet on the grounds that this case involves state secrets. For the sake of safeguarding national security, it is necessary for the Criminal Procedure Law to restrict the meeting between lawyers and criminal suspects. The provisions of the three ministries and commissions of the two academies clearly interpret "involving state secrets and cases" as: referring to cases or cases involving state secrets and cases in nature, and also clearly point out that lawyers do not need to obtain approval to meet criminal suspects for cases that do not involve state secrets. However, in practice, many investigators use "state secrets" as an excuse to interpret "state secrets" at will and turn away lawyers. The investigation of criminal cases is a state secret, the matters of criminal cases are called state secrets, economic crimes are special, individual cases are special cases and so on. Fifth, the meeting between lawyers and criminal suspects is limited in time, frequency, interrogation content and recording, so that the meeting becomes a mere formality. Sixth, the investigators did not fulfill their obligation to inform, which made the suspects in many cases not know to hire lawyers, and some did not provide convenience for them. Many suspects don't hire lawyers, and defense lawyers are not in place. How can we meet! ?
Second, it is difficult to apply for changing compulsory measures. Article 96 of the Criminal Procedure Law stipulates that after the first interrogation by the investigation organ or from the date when compulsory measures are taken, the defense lawyer may apply for bail pending trial for the criminal suspect. Article 75 of the Criminal Procedure Law also stipulates that if the people's courts, people's procuratorates and public security organs take compulsory measures beyond the statutory time limit, the lawyers entrusted by the criminal suspect and defendant and their defenders have the right to request the cancellation of compulsory measures. Article 20 of the articles of association of the three ministries and one committee of the two academies is further clarified. As for the right of defense lawyers to apply for changing compulsory measures, the above provisions are basically a dead letter and are rarely implemented. For example, the suspect suffers from a serious illness and does not meet the conditions for arrest. Secondly, the phenomenon of extended detention is still repeated. Some specialized agencies turned a deaf ear to lawyers' applications for changing compulsory measures and did not reply. Then, driven by interests, they charge a high margin. In many cases, deposits are often hundreds of thousands. In some cases, they all charge a high deposit and ask the suspect to find a guarantor. The surprisingly high deposit is beyond the criminal suspect's affordability, so it is empty talk to apply for bail pending trial. ?
Third, it is difficult to investigate and collect evidence. Whether national laws give defense lawyers the right to investigate and collect evidence and how lawyers investigate and collect evidence are old problems in the field of criminal procedure law. But in judicial practice, defense lawyers should have this right. Because the right of investigation and evidence collection is an important embodiment of the right of defense and an important means to realize the right of defense. If the lawyer's right to investigate and collect evidence is not recognized, or the lawyer's right to investigate and collect evidence is restricted or deprived, this lawsuit is incomplete and unhealthy. As far as the theory of litigation structure of criminal procedure law is concerned, the right to investigate and collect evidence should be one of the indispensable contents of modern criminal procedure [3]. However, it is difficult for defense lawyers in China to exercise their right to investigate and collect evidence, and the resistance, obstacles and risks of any investigation are unimaginable. In recent years, hundreds of lawyers have been detained or arrested for perjury in investigation and evidence collection. In the team of lawyers, some people make false certificates, and they can't correctly perform their right to investigate and collect evidence, but they are individual after all. Most of these arrested lawyers were acquitted, which fully explained the problem. At present, it is difficult for lawyers to investigate and collect evidence in three aspects: First, China's legislation does not clearly stipulate lawyers' right to investigate and collect evidence in the investigation stage. According to Article 37 of the Criminal Procedure Law, defense lawyers have the right to investigate and collect evidence only in the stage of examination and prosecution, which leads to the investigation behavior of defense lawyers in the investigation stage being unfounded. Some lawyers' investigations in the investigation stage are either identified as perjury, or the materials obtained are identified as insufficient evidence by the public security and judicial organs and will not be adopted. Therefore, many lawyers refer to the investigation activities in the investigation stage as "risk investigation". Second, legislation restricts lawyers' right to investigate. Legislation gives defense lawyers the right to investigate and collect evidence from the stage of examination and prosecution, which is conditional. On the one hand, the investigation must obtain the consent of the relevant units and individuals, on the other hand, it must obtain the permission of the people's procuratorate and the people's court. Moreover, China's legislation is euphemistically called, giving defense lawyers the right to apply for investigation, that is, lawyers stipulated in Article 37, paragraph 1 of the Criminal Procedure Law can apply to the people's procuratorate and the people's court for collecting and investigating evidence. However, this right of application is often invalid, either only the application is fruitless, or the materials and results of the investigation are not answered and informed. Some prosecutors also said something strange, saying, "There is nothing cheap in the world, you have to pay, there is no way!" . Third, individual public security and judicial organs and personnel confused the boundary between lawyers' correct performance of their duties and perjury in the process of investigation and evidence collection. If we don't analyze the lawyer's investigation, we will condemn it as perjury, and even lack a correct understanding of the constitutive elements of perjury, and put some subjective intentions, behaviors and languages that have not perjured at all. Due to the lawyer's investigation, the witness told the truth, the suspect retracted his confession, and the investigating lawyer was labeled as perjury. Therefore, many lawyers are concerned, take risks, engage in criminal defense, and even most lawyers do not investigate at all after accepting the entrustment, so the quality of defense is difficult to guarantee.
Fourth, it is difficult to mark papers. In the process of criminal proceedings, it is the key and core for lawyers to consult the case files and understand the case. Because only by knowing the evidence materials of the prosecution can we put forward the opinions of defense and defense. Countries all over the world attach great importance to this link in legislation and practical work. In order to realize this right of lawyers, many countries have created evidence discovery system, which provides sufficient conditions and opportunities for lawyers to consult the case files. However, in our country, this important right of defense lawyers has not been implemented from legislation to criminal litigation practice. Its manifestations are as follows: First, the newly revised Criminal Procedure Law focused on the reform of trial methods. In order to solve the problem of sentencing before sentencing, the people's procuratorate will no longer transfer the original volume and the whole volume to the court when prosecuting. In this way, lawyers' pre-trial marking rights have been greatly weakened, and even some lawyers have reported that the legislation of lawyers' marking rights has regressed, which is not as good as the original criminal procedure law. This statement is not unreasonable. According to Article 150 of the Criminal Procedure Law, lawyers can only read the indictment, the list of evidence, the list of witnesses and the copies of major evidence before the trial, which is obviously a retrogression. Second, before the trial, the lawyer only saw the "copy of the main evidence". As for what is the "copy of major evidence", although the "Regulations" of the three ministries and one committee of the two houses clearly pointed out the scope of "major evidence": (1) the major evidence among all kinds of evidence involved in the indictment; (2) A number of similar evidences are identified as "main evidences"; (3) As evidence of voluntary surrender, meritorious service, recidivism, suspension, attempt and justifiable defense. However, in the process of execution, some take secondary evidence as the main evidence, hide the main evidence, and play it in court as a "replay" in an attempt to make lawyers unprepared and in a passive position; Some only transfer the main evidence proving the defendant's guilt to the court, but hide the main evidence proving the defendant's innocence and light crime, so that lawyers can't see it before or during the trial; What's more, in some places, under the pretext of economic difficulties, there is no copier, no copy paper, and the copier is broken. Only the indictment, the list of evidence and the list of witnesses appearing in court are retrieved, and all the evidence materials are not retrieved, depriving lawyers of the right to read papers before trial; Third, marking papers in the stage of examination and prosecution is a mere formality, which cannot solve practical problems. Article 36 of the Criminal Procedure Law stipulates that defense lawyers may consult, extract and copy the litigation documents and technical appraisal materials of this case from the date when the people's procuratorate examines and prosecutes the case. This provision of legislation is a restriction on lawyers' right to read papers, that is, lawyers have no right to consult evidence materials that are decisive for conviction and sentencing, and can only consult general litigation documents and individual appraisal materials. This limited right is also limited in practical work, especially for this case. The procuratorate even made excuses and refused to consult. Even if there is, the parties or lawyers who have doubts about it and apply for re-appraisal will all be rejected. ?
Fifth, lawyers' defense opinions are difficult to adopt. Since the reform of the defense system, less than 30% of lawyers in China have participated in litigation, 70% of criminal cases have no lawyers, and most lawyers are unwilling to participate in criminal proceedings. This situation will not be discussed and evaluated for the time being. As far as the cases that have been involved in litigation are concerned, most of them are still in the state of "you argue your case and I judge my case". Borrowing a judge's speech at a meeting [4], we are still trying criminal cases only according to the evidence of the prosecution. On the one hand, it is difficult for lawyers to ask and hear their voices; On the other hand, the judge did not pay attention to the opinions of lawyers in court and did not listen. He is still used to the practice that the two courts jointly deal with the defendant. Especially when the defense of innocence involves the accountability of relevant law enforcement departments and law enforcement personnel, such defense opinions are rarely adopted. For example, a criminal suspect (a vocational college student) is forced by life. At about 10 in the evening, the victims on foot, unarmed and on foot robbed the victims from behind while they were unprepared. Due to the intervention of the bag and the inertia of the impulse, the victim was pulled to the ground. The suspect pulled hard, without any second action, and did not have physical contact with the defender. The victim's satchel was snatched away and the victim's knee was scratched by the ground. After the incident, the public security organs criminally detained the perpetrators on suspicion of robbery. Upon appraisal, the value of the robbed property is more than 300 yuan (if the amount of robbery is less than 1000 yuan according to regulations, it does not constitute robbery). Later, the public security organs arrested him for robbery and transferred him to prosecution. The case was still identified as robbery after the final trial. According to the regulations of Jiangsu Provincial High Court, the procuratorate of first instance accused that if the victim found himself robbed during the robbery, the perpetrator would be punished as robbery. At the time of this case, the Supreme People's Court has made a new judicial interpretation, clearly stipulating that only when driving or riding a vehicle, there is a situation of forced pulling or dragging, and it will be punished as robbery. In the first trial, the defender proposed that it did not constitute robbery. In the second trial, the defender proposed the Supreme People's Court's new judicial interpretation that the case did not constitute a crime, but it was not adopted.
Thirdly, some ideas on perfecting criminal defense system in China.
Under the current situation, it is very necessary to improve criminal defense system. At the same time, many systems in the United Nations International Covenant on Civil and Political Rights and Basic Guidelines on the Role of Lawyers fully embody the judicial concept of promoting democracy and putting people first, which is also worth learning and learning from to improve criminal defense system in China.
(A) to achieve the balance between prosecution and defense as a breakthrough, from the legislative to the judicial level, truly establish a criminal prosecution and defense system based on the principle of litigant, and end the current transitional criminal litigation mode as soon as possible [5]. In essence, the strong prosecution and weak defense cannot constitute the criminal litigation mode of prosecution and defense. At present, the criminal litigation system in the name of prosecution and defense is actually not as good as the inquisitorial litigation mode of state power organs. Under the old criminal procedure law, lawyers can at least read all the evidence materials that are favorable or unfavorable to the defendant, but now even the evidence materials that are unfavorable to the defendant seem to be difficult to read, let alone investigate and collect evidence. In a sense, the current criminal procedure law objectively forms a situation that the prosecution is strong and the defense is weak, which makes the current criminal procedure system more prone to the strange phenomenon of "taking one step and retreating two steps" than the old criminal procedure system in the past. Judging from the evolution of human criminal procedure system, it is the key to establish a criminal procedure system or model that limits or expands lawyers' criminal defense rights. Whether lawyers' criminal defense rights can be effectively guaranteed is a sign to test the civilization and progress of a country's criminal procedure legal system. Therefore, it is necessary and inevitable to ensure the effective realization of lawyers' criminal defense rights and realize the balance between prosecution and defense at the judicial level, not just at the legislative level, for reforming and perfecting China's current criminal procedure system and even deepening judicial reform.
(2) Any state functionary who intentionally obstructs, restricts or deprives lawyers of their criminal defense rights, or obstructs or restricts lawyers from performing their duties in the course of performing official duties, shall be convicted and punished for the crime of abuse of power in Article 387 of the Criminal Law. Although it is necessary to abolish Article 306 of the Criminal Law and Article 38 of the Criminal Procedure Law, it may not be possible to completely put an end to the acts of state functionaries, especially public prosecutors and staff of legal organs, which hinder, restrict or deprive lawyers of their criminal defense rights or hinder or restrict lawyers from performing their duties. Therefore, it is more necessary to regulate this kind of behavior that harms society by means of punishment. It is suggested that the National People's Congress Standing Committee (NPCSC) should make a legal interpretation or the Supreme People's Court should make a judicial interpretation, so that the behavior of state staff obstructing, restricting or depriving lawyers of their criminal defense rights or obstructing or restricting lawyers from performing their criminal defense duties is classified as a crime of abuse of power, and lawyers are allowed to directly file a private prosecution with the court. If so, lawyers will have a "nemesis" in criminal defense, and lawyers' criminal defense rights will be effectively guaranteed by law.
(3) Implementing the international standards of lawyers' rights stipulated in the International Covenant on Civil and Political Rights and the Basic Guidelines on the Role of Lawyers as far as possible. 1The Basic Principles on the Role of Lawyers, adopted at the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders held in Havana, Cuba from August 27th to September 7th, 990, is by far the most comprehensive and important document on lawyers' rights in the international community. Although the document is not legally binding, as the document says, it is only formulated to help member States promote and ensure that lawyers play their due role. Governments should respect these provisions in their legislation and practice, and remind lawyers and others, such as judges, prosecutors, administrative law enforcement personnel and the public to pay attention to these provisions. However, the document confirms the basic rights and functions of lawyers generally recognized by the international community, reflects the achievements and knowledge of human social progress and civilization, and has certain authority and universal applicability. In recent years, the Central Committee of the Communist Party of China has determined the general plan of governing the country according to law and building a socialist country ruled by law, and China has joined the WTO. Theoretical innovation and institutional innovation are the basic requirements for building Socialism with Chinese characteristics. We should keep pace with the times, absorb all advanced legal civilization and judicial cultural achievements created by human society in promoting judicial reform, and build advanced legal civilization and judicial civilization. The implementation of international standards on lawyers' rights will undoubtedly contribute to the judicial reform in China, the process of building a socialist country ruled by law, and the legal and judicial civilization in China. At present, the urgent task to solve the problem of lawyers' criminal defense is to implement Article 20 of the Basic Principles on the Role of Lawyers, that is, "Lawyers shall enjoy civil and criminal immunity for their honest oral or written arguments or related professional behaviors before courts, tribunals or other legal and administrative organs." Implement the provisions of Articles 16, 17 and 2 1, that is, the government should ensure that lawyers can perform their duties and meet their clients freely without threats, obstacles, harassment or improper interference; Ensure that lawyers have the right to provide adequate security protection when the safety of performing their duties is threatened; Ensure that lawyers have the right to obtain possible information, documents and materials owned or held by the current authorities. Combining these rights with China's criminal defense system, it can be said that such a criminal defense system will be more substantial and advanced.
(4) Establish evidence discovery system. This system originated from the common law system, that is, the defendant and the defendant presented evidence to each other before the trial [6], and was later adopted by many civil law countries. In view of the fact that the prosecution is absolutely superior to the defense in the ability to collect evidence, and the limited evidence held by the defense can generally be obtained by the prosecution, the evidence discovery system is considered to be the guarantee for the defense to exercise its right to defense. The establishment of the principle of discovery of evidence in China's litigation can make the defender know the evidence of the prosecution and have the opportunity to investigate and verify it; It can make the prosecution know the contradiction between the evidence of both parties and eliminate it in time, thus reducing errors and improving litigation efficiency; As a judge, the court can also be targeted. It is conducive to the full exchange of evidence information in the trial, thus narrowing the distance between the participants' understanding of the facts of the case and the facts of the crime.
(5) Establish an inverted burden of proof system. In criminal proceedings, according to the principle of distribution of burden of proof, the burden of proof is borne by the prosecution or the party making the accusation, and the accused party should not bear the burden of proof. However, in some cases, the law may also stipulate that the defendant shall bear the burden of proof. This is the inversion of the burden of proof. For example, the identification of the crime of huge property with unknown source in Article 395 of China's Criminal Law reflects the inversion of burden of proof, which also shows the necessity of the inversion system of burden of proof in legislation and judicature. In judicial practice, we often encounter cases in which criminal suspects and defendants retract their confessions. The main reason for their retraction is that they were tortured to extract confessions during the investigation stage. Once this happens, it will directly affect the fair and timely judgment of the case. Most of the misjudged cases found are related to extorting confessions by torture. According to the current practice, the defendant must bear the burden of proof for claiming that he was tortured to extract a confession during the investigation stage. However, on the one hand, people who are tortured to extract confessions are generally in a state of loss of freedom and isolation, completely under the control of investigation organs, and their specific environment makes it difficult for them to collect evidence. On the other hand, the investigation lasted for several months, and by the end of the investigation, the injuries caused by torture had basically recovered. Unless he was tortured, disabled or killed, the traces of torture would have disappeared long ago. Finally, even if prosecutors or judges intervene in the investigation, it is difficult to obtain evidence, because the torturers and insiders are mostly acquaintances and colleagues. These reasons make some investigators more fearless when extorting confessions by torture. The system of inversion of burden of proof has been established in the Criminal Procedure Law, which clearly stipulates that investigators accused of extorting confessions by torture have the burden of proof. If you can't prove that you didn't extort a confession by torture with sufficient evidence, you should be sentenced to bear the legal responsibility or consequences of extorting a confession by torture, which is of practical and historical significance for effectively safeguarding the legitimate rights and interests of the defendant.
(vi) Giving the defender corresponding immunity [7]. The main duties of defenders are to put forward opinions and materials to prove that criminal suspects and defendants are innocent and light, or to reduce or exempt their criminal responsibilities, and to safeguard their legitimate rights and interests. If there is opposition between the prosecution and the defense in their understanding of the facts of the case, or just because the lawyer's defense speech is inconsistent with the facts identified, they can be investigated for legal responsibility, which will inevitably lead to the crisis of defense. In practice, some judicial organs call the investigation, evidence collection or interview of defense lawyers correctly performing their duties as perjury, which leads to the detention or arrest of lawyers, which leads some lawyers to think that criminal defense is dangerous and refuse to accept entrustment, which limits the full exercise of criminal suspects and defendants' defense rights to some extent. Therefore, only by giving them the right not to be investigated by law can we better protect lawyers' personal rights and litigation rights as independent subjects and promote the healthy development of the defense system. However, in the process of exercising the right of defense, defenders must do it according to law, and must seriously investigate and deal with the behavior of defenders instructing criminal suspects and defendants to collude, retract confessions and forge evidence.
A system cannot be improved if it is not criticized. As mentioned above, criminal defense system in China is facing further reform and improvement. It can be predicted that in the near future, China's criminal defense system will be more sound and perfect, and will certainly play a more important role in the process of building socialist human rights and the rule of law.
Zhao Chuanbao Jun Chen, Huaiyin District People's Court, Huai 'an City, Jiangsu Province