First, the lawyers involved in the litigation during the investigation stage are lawyers entrusted or hired by the criminal suspect, legal helpers or legal consultants of the criminal suspect, and legal service providers;
Second, the lawyers who participate in the litigation in the investigation stage are called assistants;
Third, lawyers provide advice to criminal suspects in the investigation stage, which is called litigation agents;
Fourthly, it advocates that defenders are divided into broad defenders and narrow defenders.
The Criminal Procedure Law stipulates that lawyers can intervene in criminal proceedings at the investigation stage, which is an important step in the reform of China's criminal justice system. However, the legal status of lawyers in the investigation stage is still controversial due to the imperfection of criminal defense system's provisions in the investigation procedure in China. In order to clarify the legal status of lawyers in the investigation stage, it is the key and foundation to correctly solve the related problems of lawyers' involvement in the investigation stage. Therefore, it is necessary to discuss the legal status of lawyers in the investigation stage.
① Paragraph 1996 of Article 96 of China's Criminal Procedure Law stipulates: "A criminal suspect may hire a lawyer to provide him with legal advice, complaints and accusations after being interrogated for the first time by the investigating organ or from the date when compulsory measures are taken. If the suspect is arrested, the lawyer hired can apply for bail pending trial. In cases involving state secrets, the criminal suspect's employment of a lawyer shall be approved by the investigation organ. " Article 75 and related regulations also stipulate that lawyers entrusted by criminal suspects have the right to request the authorities responsible for case investigation to lift compulsory measures beyond the statutory time limit. These provisions show that lawyers have the right to accept the entrustment of criminal suspects, intervene in criminal proceedings and exercise the important functions and powers entrusted by the above laws at the investigation stage of cases. The criminal procedure law stipulates that lawyers can intervene in criminal proceedings at the investigation stage, which is an important step in the reform of China's judicial system. However, due to the incompleteness of criminal defense system's provisions in China's investigation procedure and the differences in terms used in legal provisions, there are still disputes between academics and lawyers on the legal status of lawyers in the investigation stage. "Defining the position of lawyers in the investigation stage is the key and foundation to correctly solve the problems related to lawyers' participation in investigation". Therefore, it is necessary to discuss this issue.
Debate and analysis of some viewpoints
How to identify the identity of lawyers involved in investigation as stipulated in Article 96 of China's Criminal Procedure Law has been discussed in both theoretical and practical circles. These discussions are undoubtedly beneficial, but it is also necessary to analyze the various viewpoints in the debate.
First, there is a view that the lawyers involved in the proceedings during the investigation stage are lawyers entrusted or hired by criminal suspects; (two) as a legal adviser to the legal aid object or criminal suspect; (3) It is a legal service provider. ④
The author believes that the above viewpoints lack both legal basis and scientific nature. First of all, these appellations violate the appellation norms of litigation participants stipulated in Item 4 of Article 82 of the Criminal Procedure Law. Criminal procedure is a serious "basic" legal activity; Each participant in the litigation has a corresponding clear normative title in the criminal procedure law, which corresponds to his litigation rights and obligations. Item 4 of Article 82 of the Criminal Procedure Law stipulates that "participants in litigation refer to parties, legal representatives, agents ad litem, defenders, witnesses, experts and translators", but there are no titles such as "legal helpers" and "legal service providers" in this article, which shows that the above views lack legal basis. Second, it is unscientific for the above title to locate the lawyer's litigation role in the investigation stage only according to a specific work content of the lawyer. For example, according to the relationship between lawyers and clients, the principal-agent relationship involved in litigation in the investigation stage is qualitatively distinguished from other principal-agent relationships. When lawyers at this stage are called "legal helpers" or "legal service providers", the relationship between species is also chaotic. As far as all business activities of lawyers are concerned, their purpose and duty are to provide legal help or legal services to clients. Calling lawyers at this stage "legal helpers" or "legal service providers" cannot reflect the role and function of lawyers in the investigation stage. As far as lawyers are called "legal advisers" of criminal suspects at this stage, according to the provisions of Article 25 of China's Lawyers Law, lawyers can engage in seven businesses, of which item (1) stipulates: accepting the employment of citizens, legal persons and other organizations as legal advisers; Item (3) stipulates: accept the employment of criminal suspects in criminal cases, provide them with legal advice, represent complaints and accusations, and apply for bail pending trial; Accepting the entrustment of a criminal suspect or defendant or the designation of a people's court as a defender; Accept the entrustment of the private prosecutor in a private prosecution case, the victim in a public prosecution case or his relatives to participate in the litigation as an agent. It can be seen that the lawyer's legal consulting business is parallel to the lawyer's criminal litigation business, and the lawyer's legal consulting business itself does not include criminal litigation business. Therefore, it is also inappropriate to call the lawyer who is employed by the criminal suspect and involved in criminal proceedings the "legal adviser" of the criminal suspect.
Second, there is a view that the identity of lawyers involved in litigation in the investigation stage is the same as that stipulated in the Japanese and Taiwan Province criminal procedure laws.
The identities of the assistants are almost the same, so we borrow the concept of "assistant" and call the lawyers involved in the investigation stage assistant lawyers. ⑤
The author believes that this view is also debatable. Article 42 of Japan's Criminal Procedure Law stipulates the content of "helper": "The defendant's legal representative, guarantor, spouse, lineal relatives, brothers and sisters can become helpers at any time. As an assistant, you should put forward your intention at every level of the preliminary examination. Under the condition of not violating the defendant's express intention, the assistant can carry out the lawsuit that the defendant has the right to carry out. However, if there are special provisions in this Law, this restriction shall not apply. " According to this article, the defendant's legal representative, spouse, immediate family members, brothers and sisters can work as assistants in Japan, while lawyers are not among those who can work as assistants. In addition, according to Article 39 of Japan's Criminal Procedure Law, "When a criminal suspect is in custody, he may entrust a defender", and Article 3 1 of Japan's Criminal Procedure Law stipulates; In addition to "in the summary court, family court or local court, with the permission of the court, people who are not lawyers can be appointed as defenders", "defenders should be appointed from among lawyers." Therefore, functionally speaking, Japan's assistant system and defender system, including lawyer defense system, complement each other. As far as the assistant system in Taiwan Province is concerned, according to the provisions of the criminal procedure legislation in Taiwan Province, China, "the assistant is to state his opinions in court after the prosecution, while the assistant defendant or private prosecutor is the actor in the lawsuit, and his intention is similar to defense, aiming at protecting the interests of the defendant or private prosecutor." "To be an assistant, you must make a written statement to the court after the prosecution or make it clear in words on the date of the trial. Once stated, the identity of the assistant is obtained, which is different from that the defender should be appointed by the defendant or the person with the right to choose or by the presiding judge, and it is not out of commission. " It can be seen that in Taiwan Province Province, assistants participate in litigation at the trial stage, which is completely different from lawyers participating in criminal proceedings at the investigation stage. Therefore, it is obviously far-fetched to call lawyers involved in criminal proceedings in China "auxiliary lawyers" with similar meanings to Japanese and Taiwan Province legislative cases.
Third, some people think that it is only a general legal act for lawyers to provide advice to criminal suspects in the investigation stage. In this sense, lawyers in the investigation stage can be called "agents ad litem". ⑥
The author believes that this view is biased. First of all, in theory, "an agent ad litem is a person who participates in litigation activities on behalf of the parties and exercises the right of litigation agency". ⑦ Item (5) of Article 82 of China's Criminal Procedure Law clearly stipulates the agent ad litem: "'agent ad litem' refers to the victim of a public prosecution case and his legal representative or close relatives, the person entrusted by the private prosecutor and his legal representative in a private prosecution case to participate in the litigation on his behalf, and the person entrusted by the party involved in an incidental civil litigation and his legal representative to participate in the litigation on his behalf." According to this provision, as far as public prosecution cases are concerned, only the victims and their legal representatives or close relatives, the parties involved in incidental civil actions and their legal representatives have the right to entrust agents ad litem. The Criminal Procedure Law and other legislation do not stipulate that the criminal suspect in a public prosecution case may entrust an agent ad litem in the criminal part of the investigation stage. Secondly, lawyers provide advice to criminal suspects in the investigation stage, which is not a general legal answer. Because, when lawyers intervene in criminal proceedings and meet with criminal suspects to answer their questions, they will generally involve whether the criminal suspect's behavior constitutes a crime in law, what kind of crime it constitutes, and under what circumstances it can be justified, innocent, light or mitigated. The purpose of this answer is to help the suspect to respond correctly according to facts and laws, and its focus is to guide the suspect to prepare the defense reasons correctly. Therefore, providing legal advice to criminal suspects in the investigation stage itself is to guide them to correctly exercise their right to defense. Therefore, lawyers who participate in criminal proceedings in the investigation stage do not conform to the characteristics of agents ad litem and are not "agents ad litem" of criminal suspects.
Fourthly, some scholars believe that defenders can be divided into broad defenders and narrow defenders. This division is mainly based on the fact that lawyers who participate in litigation in the investigation stage enjoy different rights from those who participate in litigation in the review and prosecution stage and the trial stage. This view holds that according to Article 33 of China's Criminal Procedure Law, the criminal suspect has the right to entrust a "defender" from the date when the case is transferred for review. Defenders who participate in criminal proceedings at the stage of examination, prosecution and trial are formal defenders and belong to "narrow defenders". Defenders in a narrow sense can independently express their defense opinions on lightening, mitigating or exempting criminal punishment of criminal suspects and defendants according to the facts, evidence and laws of the case. However, lawyers who participate in criminal proceedings in the investigation only assist criminal suspects to exercise their defense functions, and can only appeal, accuse, meet and other activities. Summarizing the lawyer's litigation status in the investigation procedure as "generalized defender" can more accurately reveal the characteristics of lawyers' criminal activities in the investigation procedure. ⑧
The author believes that the theory of "generalized defender" is also debatable. Because this division adopts double standards and lacks scientificity. In fact, there are also great differences in the rights of defense lawyers in the stages of review, prosecution and trial. For example, Article 36 of China's Criminal Procedure Law stipulates: "From the date when the people's procuratorate examines and prosecutes a case, the defense lawyer may consult, extract and copy the litigation documents and technical appraisal documents of this case." Since the people's court accepts the case, the defense lawyer can consult, extract and copy the criminal facts and materials accused in this case. Article 159 stipulates that during the court hearing, the defender has the right to apply for notifying new witnesses to appear in court, obtaining new material evidence and applying for re-appraisal or inquest. It can be seen that the rights of defense lawyers are obviously different in the examination and prosecution stage and the trial stage. However, these significant differences do not affect us to call lawyers who provide legal aid to criminal suspects and defendants in these two stages as defense lawyers. Scientifically speaking, the rights enjoyed by defense lawyers in different litigation stages should be adapted to the nature and tasks of each litigation stage, and their specific rights should be different. Therefore, it is obviously unscientific to divide the identity of defense lawyers into broad defenders and narrow defenders just because the rights of lawyers involved in the investigation stage are different from those of lawyers involved in the prosecution stage and the trial stage. In addition, it is not conducive to a correct understanding of the role of defense lawyers in the investigation stage to call lawyers involved in litigation broad defenders. This view emphasizes the investigation stage.
The activities of defense lawyers are to prepare for the final defense in court, thus ignoring the independent role of defense function in the investigation stage, and still embodying the trial-centered principle in the division of litigation stages. Trial-centrism holds that the investigation procedure is the prelude and preparation stage of the trial procedure, and emphasizes that the purpose of the investigation stage is to find out the facts of the crime, catch the criminals and hand them over to trial, ignoring the purpose of protecting human rights in the investigation stage. "Of course, the investigation stage is a special litigation stage. In order to find out the facts of the case, the judiciary must resort to secret activities, but this does not prevent the investigation activities from having certain transparency, nor does it prevent the criminal suspect from enjoying certain litigation rights, such as the right to entrust a defense lawyer and the right to have a defense lawyer present during interrogation. " Judging from the criminal procedure structure of modern countries, the investigation stage has great independence. In the investigation stage, we should not only pay attention to cracking down on crimes, but also pay attention to protecting the human rights of criminal suspects, so we can't fully incorporate the concept of trial centralism.
In my opinion, how should lawyers participate in criminal proceedings in the investigation stage and take the initiative to participate in criminal proceedings in time? At present, only by establishing a series of lawyer intervention mechanisms can the legal status of lawyers participating in criminal proceedings be solved.