In sharp contrast to the increasing number of criminal cases tried by courts at all levels in recent years, the attendance rate of Shaanxi lawyers in criminal defense has been dropping sharply since 2006. According to statistics, in 2006, the average number of lawyers in Shaanxi Province who accepted criminal defense entrustment decreased from 1.56 in 2003 to1.65,438+06. In other words, on average, a lawyer only takes over about 1 criminal case a year. In Beijing, this is also a worrying figure. According to statistics, the number of criminal cases handled by lawyers in Beijing has dropped to below 1 case every year. Statistics show that there were 5,495 lawyers in Beijing in 2000, and 4,300 criminal cases were handled throughout the year, accounting for 10.2% of the annual business. The number of criminal cases per capita decreased from 2.64 in 1990 to 0.78 in 2000. This statistic is now greatly discounted-there are now more than 8,000 lawyers in Beijing, an increase of nearly 60% over four years ago. More and more lawyers don't want to do criminal cases. Criminal defense lawyers are prone to "accidents", and many legal professionals believe that Article 306 of the Criminal Law is hard to blame. The disadvantages of Article 306 of the Criminal Law have been recognized by the legal profession and lawyers. In 2006, zhangyan, a deputy to the National People's Congress and a lawyer of Shaanxi Datang Law Firm, put forward a motion of "Abolishing Article 306 of the Criminal Law" at the "two sessions". At that time, as a representative of the National People's Congress, she participated in a lawyer's law enforcement inspection in the National People's Congress Standing Committee (NPCSC) (NPC). As a result, the inspection team found that the strongest voice from lawyers was to abolish the crime of lawyer perjury. In the motion, she proposed that this article objectively caused the deterioration of lawyers' practice environment, imbalance between prosecution and defense, repeated professional retaliation, and damage to lawyers' reputation, and should be amended as soon as possible. The badness of Article 306 of the Criminal Law is that it provides a sword hanging over the lawyer's head, which provides convenient conditions for the "professional revenge" of the public and procuratorial organs. It's unfair and dangerous because you never know when it will fall. Since 1997, the negative effect of the legislation of Article 306 of the Criminal Law has made the criminal defense work of lawyers, which is already struggling, worse. The weakening or even disappearance of criminal defense function has become one of the important reasons for the frequent occurrence of unjust, false and misjudged cases in recent years. A serious consequence of this is that the defendant's right of defense, which is responsible for finding out the facts and restricting the right of public prosecution of public prosecution organs and procuratorial organs, has shrunk seriously in the design of criminal litigation defense system. In recent years, unjust, false and misjudged cases frequently exposed, such as the case of "wife killing" in She Xianglin, Hubei Province and the case of "rape and murder" in Nie Shubin, Hebei Province, are all related to lawyers' failure to actively and effectively defend and confront the prosecution.
Article 306 of the Criminal Law stipulates: "In criminal proceedings, defenders and agents ad litem who destroy or falsify evidence, help the parties to destroy or falsify evidence, threaten or induce witnesses to change their testimony of facts or commit perjury shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention; If the circumstances are serious, they shall be sentenced to fixed-term imprisonment of not less than three years but not more than seven years. The witness testimony or other evidence provided, presented or quoted by defenders and agents ad litem is inaccurate, not intentionally forged and does not belong to forged evidence. "
What do you mean by destroying or falsifying evidence? There is no clear definition of "evidence" here. Legally speaking, guilty behavior should refer to forging or destroying documentary evidence, physical evidence and other physical evidence. The seven forms of "evidence" defined in the Criminal Procedure Law include confessions and excuses of criminal suspects and defendants. In this way, the absurd application consequence comes out: the defendant overturns the original confession, which is a very reasonable behavior, and can actually become a criminal act of lawyers "destroying the original evidence and forging new evidence"
What does it mean to threaten or induce witnesses to change their testimony or commit perjury against the facts? There is no clarification and definition of "seduction" here, which is easy to be misinterpreted and used maliciously in actual operation. When lawyers use some questioning skills to question witnesses, they are also considered as "seduction". In addition, suppose that the witness was tortured to extract a confession during the investigation stage, and the witness changed his testimony under the persuasion of the lawyer. Although this obviously does not belong to the crime of perjury by lawyers, the public and procuratorial organs can retaliate against lawyers on this ground and arrest them first. I'm not afraid that you'll be acquitted in the end. Anyway, you'll have to go to jail for a while and suffer for a while. Under this possible risk threat (which has happened many times in practice), lawyers are often unwilling to engage in criminal defense work (those big-name criminal defense lawyers in Beijing have backgrounds that ordinary lawyers can't match), and even if they participate in criminal defense, they are often unwilling to investigate and collect evidence from witnesses (they are also unwilling to discuss with defendants in the future, and Li Zhuang's fate is the best lesson). How to ensure the quality of criminal defense when the strength of the prosecution and the defense is obviously unequal? How can we ensure that the rights and interests of criminal suspects and defendants are not infringed?
From the above analysis, it can be seen that Article 306 of the Criminal Law is an out-and-out evil law provision, which must be banned or substantially amended, otherwise the legal situation in our country will be seriously deteriorated. As a law-abiding citizen, in order to protect my own safety, I make a strong appeal. Although our society can't be said to be a society ruled by law, the existence of the lawyer system is a great progress compared with the Cultural Revolution, and no retrogression can be tolerated on this basis. Our society needs lawyers, especially criminal defense lawyers!
Some people who don't know what the rule of law is are not interested in lawyers taking money to defend others, and think that lawyers should not take the initiative to defend "bad guys" for money. Adam Smith, the author of The Wealth of Nations, said: "The diet we need every day comes not from the kindness of butchers, brewers and bakers, but from their selfish plans." By the same token, all the calculations made by lawyers for their clients are only in the process of practice and within the framework of law. Entrusted by the client, lawyers defend themselves, which is also beneficial to others. Lawyers start from their clients, and judicial organs pursue what is called truth from the perspective of the state. The role of lawyers, in the final analysis, points to procedural justice. Lawyers serve the "bad guys", in fact, they serve every good person in society. Therefore, the original legislative intention of Article 306 of the Criminal Law does not conform to the spirit of procedural justice.