My opinion on the role of lawyers in criminal proceedings
Article 2 of China's Criminal Procedure Law stipulates: "The tasks of the Criminal Procedure Law of the People's Republic of China are to ensure accurate and timely identification of facts, correct application of the law, punishment of criminals, protection of innocent people from criminal investigation, education of citizens to learn to abide by the law and active struggle against criminal acts, so as to safeguard the socialist legal system and protect citizens' personal rights and property rights. According to this provision, the author thinks that the task of China's criminal procedure law can be summarized as the unity of punishing crimes and safeguarding socialist human rights, which is the key to realize the task of China's criminal procedure law. According to the requirements of this law, punishing crimes refers to the functional departments of public security, public prosecution and law. Under the premise of strictly following the principles and procedures stipulated in the Criminal Procedure Law, it is necessary to ensure accurate and timely identification of criminal facts, correct application of the law and punishment of criminals, while safeguarding socialist human rights refers to ensuring that innocent people are not subject to criminal investigation and that criminal suspects and defendants enjoy full litigation rights.
The two major tasks of punishing crimes and protecting socialist human rights run through the whole process of criminal proceedings, so the active realization of the functions of both the prosecution and the defense is an important link to accomplish the above two major tasks. In the modern litigation system, the functions of the prosecution, the defense and the adjudication are separated, and the prosecution and the defense are both antagonistic and unified. The function of the procuratorial organ is to accuse crimes and prove that criminal acts should be convicted, so that criminals can be punished. So that the law can be realized in real life, and the lawyer's function as a defender is to put forward materials and opinions to prove that the suspect and defendant are innocent, light or relieved of criminal responsibility according to facts and laws, so as to safeguard the legitimate rights and interests of the suspect and defendant, so that the innocent person will not be investigated for criminal responsibility, so that the person with light crime will not be severely sentenced, and the law will be correctly implemented through the lawyer's work. Therefore, this kind of confrontation between the functions of accusation and defense, Make the facts of the case clear and determine the responsibility correctly, so as to help the judge find out the facts accurately and apply the law correctly, so as to achieve the unity of punishing crimes and safeguarding socialist human rights. This is a unity that can only be achieved through confrontation, which is the premise and the result. This unity is the embodiment of national will and national interests.
in order to achieve this unity, the theory and practice of modern criminal procedure law emphasize the relative balance between the functions of the prosecution and the defense, otherwise it will affect the procedural justice of criminal proceedings. It affects the correct implementation of substantive laws, further affects the unity of punishing crimes and safeguarding socialist human rights, and ultimately damages the embodiment of national will and the realization of national interests. Therefore, when revising the Criminal Procedure Law, based on the Constitution, in order to meet the needs of reform and opening up and the development of socialist market economy and improve the democratization and scientificization of the criminal procedure system, China, on the basis of summing up past experiences and lessons, appropriately consulted the relevant provisions of foreign criminal procedure laws and international treaties, and revised and supplemented the 1979 Criminal Procedure Law around the tasks of punishing crimes and safeguarding socialist human rights in the Criminal Procedure Law. In particular, the protection of the litigation rights of criminal suspects and defendants has been strengthened, and the principle of "no one can be found guilty without a court judgment according to law" has been added, which shows that even in criminal proceedings, China has protected socialist human rights in the form of law, adopted a plea trial method, strengthened the role of lawyers, and maintained a relatively balanced function between the prosecution and the defense, all of which have played a positive role in promoting the protection of human rights.
However, as far as the current situation is concerned, the legislative intention of legislators to amend the Criminal Procedure Law has not been fully reflected in judicial practice. The position and role of the public, the procuratorate and the law in criminal proceedings are generally accepted by people, and their work is to realize the law and the public's knowledge, while the work of lawyers is also to realize the law, but people know little about it, even some comrades in the legal department have this view. As a result, lawyers' right to practice according to law in criminal proceedings has been repeatedly violated, and lawyers have difficulties in meeting, investigating and collecting evidence, marking papers and cross-examining. The principles are mainly as follows:
First, under the influence of traditional ideas, all sectors of society still do not fully understand lawyers' work and hold prejudices.
China is a country ruled by bureaucrats in history, with great administrative power, and judicial power is subordinate to administrative power. Under normal circumstances, when people encounter disputes, they always expect a "master" to preside over justice. Therefore, presiding over justice has become a matter for officials to have the final say. The biggest feature of official management is that it pays more attention to the entity than the procedure. "Master Qingtian" tries cases according to his own intention, and there is no procedural restriction to supervise judicial justice. The litigation institutions in ancient China have always adopted the principle of authority, and the rights of the defendant are ignored and they do not enjoy the qualification of the litigation subject, so they are not allowed to enjoy the right of defense and the litigators are not allowed to participate in the litigation. Second, "the value of the litigator itself lies in the pure economic benefits". It is precisely because of the above reasons that, traditionally, the lawyer industry has never been taken seriously in our country, and it is an excluded profession. It is customary to dismiss lawyers as litigators or teachers with poor image.
with the establishment of modern legal system, especially the deepening of China's reform, the socialist market economy requires a perfect legal environment. The main purpose of market economy is fair competition, and the role of law is to maintain fairness. Therefore, the market economy is the economy ruled by law. To rule the country by law, simply speaking, is that the governance of the country must be based on laws, and everything is handled in accordance with the provisions of laws and regulations. The rule of law requires that both the public rights represented by the state and the private rights represented by individuals should be exercised in accordance with the provisions of the law, so checks and balances are particularly important. In the modern national system, checks and balances are put forward as an important means to guarantee democracy. On a large scale, China's people's congress system has effectively supervised the state's power; From a small point of view, in some cases involving specific issues, lawyers' agency or defense has become a key factor to effectively advocate and supervise all parties to participate in social or economic activities in accordance with the law, and it is an effective force for social checks and balances.
It can be seen that the lawyer's job is to assist the parties in their activities according to the legal track. Taking criminal cases as an example, lawyers' participation in criminal proceedings is mainly to protect the defendant's right to defense, which is endowed by the Constitution. Because of the defendant's ignorance of the law, lawyers as defenders can fully safeguard the rights and interests of the defendant. Making innocent people not be investigated for crimes and making minor crimes not be severely sentenced are actually the requirements of the law and the guarantee of modern laws for people's basic rights. Therefore, the role of lawyers in the process of criminal defense is not to excuse crimes, but to ensure the full exercise of the defendant's right to defense in accordance with the law, and to safeguard the law rather than trample on it. However, due to the influence of traditional thinking, there is a concept that lawyers are to help the bad guys take advantage of the loopholes in the law and speak up for the bad guys. Undeniably, there are very few lawyers who may take advantage of legal loopholes and reverse black and white, but the vast majority of lawyers are engaged in the work of safeguarding the law under the provisions of the lawyer law and practice rules.
second, lawyers pay more attention to the fairness of procedures, which easily leads some procuratorial departments to think that lawyers hinder the smooth trial of cases and thus have doubts and misunderstandings about lawyers.
the justice of law includes the justice of result and the justice of procedure. In the judicial process, especially in the litigation process, there is no justice of the result without procedural justice. Sometimes, the justice of the result and the justice of the procedure are contradictory. Take the famous trial of the century-Simpson case as an example. From the perspective of the justice of the result, 81% of the public opinion in the United States thinks Simpson is guilty. From the point of view of procedural justice, there are problems in the collection of evidence by the prosecution and the selection of police officers in charge of the case. The trial result of this case is that Simpson is not guilty. Obviously, the justice of the procedure overrides the justice of the result. For this contradiction, the consistent view is that the justice of procedure is more important than the justice of result. Because, if the justice of the procedure cannot be achieved, the justice of the result cannot be discussed at all, and only talking about the justice of the result, not paying attention to the justice of the procedure, may also produce unjust, false and wrong cases. Procedural justice is macroscopic justice for law; However, the justice of the result is the microscopic justice for specific cases, so procedural justice is far more important than the justice of the result. If procedural justice can be realized, the justice of the result is guaranteed, and procedural justice will further urge government officials to act according to law and not abuse their powers. This is also the more important significance of what we usually call "procedure" in lawyer business.
Based on the above reasons, in the process of handling cases, lawyers not only help the parties to seek justice in the results, but also play a check and balance role in the judicial process. Especially in the process of criminal defense, lawyers can find out the doubtful points of evidence and the illegal points of law enforcement personnel through defense, all of which are to protect the defendant's right to defense and safeguard the fair implementation of the law. After the promulgation of China's newly revised Criminal Procedure Law, some principles in criminal trial have been revised, such as "no one can be found guilty without a court trial" and "evidence must be confirmed after cross-examination", etc. These principles are the focus of lawyers' work. Of course, compared with the old criminal trial principles, these aspects undoubtedly increase the difficulty of the work for the procuratorial department. Due to the different angles between lawyers and procuratorial departments in the process of large-scale criminal trials, when lawyers raise objections according to law, they are often regarded by the prosecution as setting obstacles in a targeted way, or even as colluding with the defendant. It is for this reason that lawyers' professional rights and interests are violated, mostly in the process of procedure.
Therefore, a correct understanding of the significance of procedural justice plays a great role in coordinating the work of procuratorial departments and lawyers. Although the prosecution, the defense and the adjudicator have different division of labor in the trial of the case, the goal is the same. Only by understanding this can the procuratorial department eliminate unnecessary doubts and misunderstandings, thus effectively reducing the occurrence of infringement cases.
third, as an indispensable link in the structure of criminal proceedings, lawyers are also the weakest link.
Although the revised Criminal Procedure Law has been revised and added to improve the role and rights of lawyers in criminal proceedings, there are still defects in balancing the litigation rights of both the prosecution and the defense.
1. About the lawyer's right to meet the criminal suspect.
Article 96 of China's Criminal Procedure Law stipulates that the right of lawyers to intervene in advance is established, which is to ensure that criminal suspects can get legal help from lawyers in time, so that defendants and their defense lawyers can get enough time and means to prepare their defense. However, while making this provision, the Criminal Procedure Law also stipulates that "the investigation organ may send personnel to be present according to the circumstances of the case". In judicial practice, some departments abuse this right and even limit the time and frequency of lawyers' meetings, regardless of whether the circumstances of the case require it, which is different from the United Nations Basic Principles on the Role of Lawyers that "all people who are arrested, detained or under surveillance should have sufficient opportunities, time and convenient conditions. Without delay, without being eavesdropped, without being prosecuted and completely confidential, lawyers can visit and negotiate with them, and such consultations can be carried out within the range that law enforcement officers can see but can't hear. This makes lawyers and accusers extremely unbalanced in this litigation right, which makes it difficult to realize the original intention of legislation in judicial practice.
2. About the lawyer's right to read papers.
Article 36 of China's Criminal Procedure Law stipulates lawyers' right to read papers, but in the stage of examination and prosecution, lawyers can only consult, extract and copy the litigation documents and technical appraisal materials of this case, and in the stage of trial, lawyers can consult, extract and copy the materials of criminal facts accused in this case, which makes it difficult for lawyers to play their roles well. In terms of criminal trial mode, China has absorbed some factors of foreign adversary system, and implemented the adversarial trial mode under the command of the court, which aggravated the antagonistic function between the lawyer and the accuser. However, because the lawyer can't see all the case materials in the review, prosecution and trial stages, the rights enjoyed by the lawyer in mastering the materials are obviously extremely unbalanced with those enjoyed by the accuser, and the powerful defense made by the lawyer depends on the basis of all the materials.
To this end, the Basic Principles on the Role of Lawyers in the United Nations stipulates that the competent authorities have the obligation to ensure that lawyers have sufficient time to access relevant materials, files and documents in their possession or management, so that lawyers can provide effective legal assistance to their clients, and such access opportunities should be provided at an appropriate time as soon as possible.
3. About lawyers' right to investigate and collect evidence.
article 37 of China's criminal procedure law stipulates lawyers' right to investigate and collect evidence, but this right is not available in the criminal investigation stage. at the same time, the exercise of lawyers' right depends on the consent of the units and individuals under investigation, or on applying for assistance from procuratorial organs or judicial organs, which is often difficult to implement in judicial practice. according to the current criminal trial mode in China, this increases lawyers' responsibility and lawyers provide defense for defendants. It mainly depends on the lawyer's grasp of the evidence. Lawyers do not have the right to investigate and collect evidence when they enter in advance. In the stage of examination and prosecution, they cannot see all the case files, so it is difficult to achieve a relative balance with the accuser, and it is even more difficult to form a strong confrontation with the accuser in court.
Fourth, the quality of lawyers still needs to be continuously improved and their construction strengthened.
Although the whole team of lawyers has been recognized and respected by the society, the quality of lawyers is uneven due to the rapid development and uneven development. In the process of handling cases, a few lawyers are mercenary, which violates professional ethics and legal provisions, helps criminals reverse black and white, forges evidence, and even directly participates in illegal activities. Such lawyers are also one of the reasons why the whole team of lawyers is misunderstood. For such a small number of lawyers, of course, it is not within the scope of the protection of lawyers' rights, but from such lawyers, we can see that the improvement of the quality of lawyers is an important aspect to prevent cases of infringement of lawyers' rights.
5. The protection system for lawyers' practice is not perfect.
At present, there are some provisions on the protection of lawyers' rights in China's laws and regulations, but most of them are general and lack of maneuverability, especially for the particularity of the lawyer industry. Lawyers are bound to confront some aspects in their practice, and the imperfect protection measures provide an opportunity for violations of lawyers' rights and interests.