Faced with the above three phenomena, we should not only ask: Is there something wrong with our rule of law or with our lawyers?
According to the relevant laws and regulations, we can divide lawyers' rights into three categories, namely, lawyers' personal rights, lawyers' practice rights and lawyers' litigation rights.
The lawyer's personal right refers to the most basic right given by law to exist as a human being, which mainly includes the right to life, health, personal freedom and personal dignity.
Lawyer's right to practice refers to the lawyer's right to carry out business according to law, safeguard the legitimate rights and interests of the parties and ensure the correct implementation of the law.
Lawyer's litigation right is the right that lawyers should enjoy in their practice activities and the guarantee for lawyers to perform their duties according to law.
In a sense, our lawyers have lost their rights in three aspects.
1. Loss of rights due to lack of legislation.
Although the Lawyers Law and other laws and regulations give lawyers a lot of rights, they obviously omit an important right intentionally or unintentionally, that is, they do not give lawyers immunity from criminal defense.
2. Loss of rights due to improper deprivation
Lawyers' right to practice is endowed by law, and no organ or individual has the right to restrict or deprive them at will. However, the regulations of some authoritative organs deprive lawyers of their legal rights to some extent.
3. Loss of rights due to lack of protection.
First of all, the right of lawyers to meet with criminal suspects in custody is not guaranteed. According to the relevant provisions of China's Criminal Procedure Law, a criminal suspect can hire a lawyer to provide legal advice, complaints and accusations on his behalf after being interrogated for the first time by the investigation organ or from the date when compulsory measures are taken. The entrusted lawyer has the right to know the criminal situation of the criminal suspect from the investigation organ, and can meet the criminal suspect in custody and learn the case from the criminal suspect. However, these rights cannot be guaranteed in practice.
Secondly, lawyers' right to investigate and collect evidence is not guaranteed. The right to investigate and collect evidence is a core right given to lawyers by law. However, in judicial practice, it is quite difficult for lawyers to investigate and collect evidence. Some units and individuals are unwilling to issue certificates for lawyers; Some units stipulate internally that archival materials can be provided to public security organs, but not to lawyers; Some units even deliberately obstruct and make things difficult for lawyers to investigate and collect evidence, and refuse to consult any information; Although some agreed to consult, they restricted lawyers from copying and refused to issue relevant certificates.
Third, the lawyer's right to cross-examination can not be guaranteed. The right of cross-examination is an important litigation right necessary for lawyers to perform their duties, but in reality the exercise of the right of cross-examination cannot be guaranteed for various reasons. In the process of trial, prosecutors often gain an overwhelming advantage by virtue of their status as legal supervisors, while defenders have very limited litigation rights in the trial and are unable to change their disadvantages.
Fourth, the lawyer's right to read papers is not guaranteed. Lawyers must have the right to know when performing their duties according to law. According to the provisions of the Criminal Procedure Law, in the stage of examination and prosecution, defense lawyers can consult, extract and copy the litigation documents and technical appraisal materials of this case. Procuratorial organs generally understand litigation documents as filing decisions, detention certificates, arrest warrants, etc. Exclude the confessions of criminal suspects and the evidence collected by judicial organs. This greatly limits the facts of the case that lawyers can learn through marking in practice.
Fifth, the personal rights of lawyers are not guaranteed. Although according to the law, lawyers perform their duties according to law and are protected by national laws, no unit or individual may interfere, and lawyers' personal rights are not infringed, it is a sad reality that lawyers' personal rights and interests are not guaranteed.
The current situation of lawyers' rights will have a very adverse impact on the development of the lawyer industry.
First, the practical environment will be more difficult.
Due to the late start of the rule of law in China, the prejudice of some judicial organs and their staff against lawyers in judicial practice, the influence of traditional concepts and the lag of legislation, the practice environment faced by the lawyer industry is not very good. If the right problem is not solved, personal rights, practice rights and litigation rights are not guaranteed, lawyers will undoubtedly face a more difficult practice environment.
Second, the concept of practice will change.
Defending the achievements of the rule of law, ensuring the correct implementation of the law, safeguarding the legitimate rights of the parties and fighting for law and justice are the practice concepts that lawyers should adhere to. These ideas have also guided countless lawyers to fight for this glorious cause all their lives. However, with the reality that lawyers' rights have been repeatedly violated, this concept is also changing quietly. Many lawyers began to consider how to seek advantages and avoid disadvantages, and began to look at the so-called pragmatism. Especially for young lawyers who have just entered this industry, when they see the tragedies staged by their peers, their ideals of fighting for the rule of law, human rights and justice may be shattered before they can start their initial practice.
Third, the further development of the legal profession will be hindered.
Under the background that the practice environment becomes more difficult and the rights of lawyers are not guaranteed, the further development of the lawyer industry will undoubtedly face obstacles. Excellent talents in the lawyer industry will be lost, and the lawyer business will not be expanded and deepened.
The author believes that it is necessary to establish a benign interactive relationship between the construction of the rule of law and the rights of lawyers. The so-called benign interaction can be expressed as follows: lawyers actively participate in and promote the construction of the rule of law, serving the realization of governing the country according to law and building a socialist country ruled by law; The construction of the rule of law should give lawyers the right and effectively guarantee the realization of this right. To realize this kind of benign interaction morality, lawyers need to have the idea of doing their duty for the rule of law, the spirit of fighting for power and profit, and promote the construction of the rule of law with positive actions. Whether you can make an excellent answer paper is not only related to your own destiny, but also to the future of the rule of law in China, and every lawyer should work hard for it.
Article source: Legal Daily