_ _ Wen Tao
1 March, 1996 17, the fourth session of the Eighth National People's Congress adopted a decision on amending the Criminal Procedure Law of People's Republic of China (PRC), and the revised Criminal Procedure Law came into effect on 1997 1 month1. 1 May 5, 1996 1 9th meeting of the 8th the NPC Standing Committee unanimously passed the People's Republic of China (PRC) Lawyers Law, which came into effect on 19971month1day.
It's been a year since the law was promulgated, and it's almost a year since it came into effect. We can see that compared with the difficulty of law enforcement today, the difficulty of legislation at the beginning was inevitably somewhat sentimental; We also see that, except for a few cases that are not enough to affect the overall situation, the implementation of the whole criminal procedure law and the reform of the prosecution and defense have not achieved much, or even failed. The practice environment has not improved, but it has become more sinister and difficult. 1997, the national criminal defense business dropped sharply compared with the same period of last year, and this downward trend continues.
The difficulty of practicing law will definitely affect the enthusiasm of lawyers, and the negative opposition of lawyers will inevitably lead to the shrinkage of lawyers' profession. What is more serious is that lawyers' evasion of criminal defense business will inevitably lead to the failure to protect the legitimate rights and interests of defendants and criminal suspects, and fraud will be even more unscrupulous, which will directly lead to the difficulties in the construction of democracy and legal system in China. This is by no means alarmist, and it has aroused the deep concern of more and more people of insight. This paper attempts to make a rough analysis of the specific manifestations, causes and countermeasures of lawyers' difficulties in practicing, so as to attract more people of insight to pay attention to the situation of lawyers in China.
First, the specific performance of lawyers' practice difficulties
(a) the relevant judicial departments and administrative departments do not cooperate with lawyers, or even make things difficult for lawyers, so that lawyers are often in an embarrassing situation.
Article 96 of the 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 investigation organ or from the date when compulsory measures are taken". The author once accepted a robbery at the stage of public security investigation, and the suspect was arrested. The first time I contacted the public security organs, they replied: Wait, they contacted the undertaker. Second reply: The case has been transferred to the procuratorate. After tracing it to the procuratorate, the dean was writing at his desk. When he heard the name of the suspect, he said that if there was any omission in this case, he would return it to the supplementary investigation and was not allowed to meet. After a while, he contacted the public security organ and replied that the case had been returned to the police station for investigation and could not be met. Contact the public security bureau again and answer: the crime of omission has not been investigated clearly, so we can't meet. After a while, I contacted the Public Security Bureau again and finally got an Application Form for Meeting a Lawyer from the back office. The author filled in every word with trepidation, stamped the official seal of the law firm, and sent it to the public security bureau the next day together with a copy of the lawyer's practice license, witnesses of the bar association and the power of attorney they needed. I exulted, and finally met the suspect after dozens of days of busy work. Who wants to be scolded by the responsible police officer: why didn't you come earlier? The case has been transferred to the procuratorate. I couldn't vent my anger, and I couldn't spit it out because I was full of bitterness. I chased it to the procuratorate. After a whole day, I finally got the words "agree to meet". It took me two months to accept the entrustment, and I ran nine times in person, and finally got these four words. I really want to shout "thank you for your kindness!" "
As long as such a case is enough, it is enough to completely break a lawyer's heart. Lawyers can bear hardships, but lawyers can't stand the three-day questioning of the parties, and their work has made no progress and lost their credibility; Lawyers can bear hardships, but they can't afford to lose their personality and dignity in the face of indifference and contempt from various functional departments. Such a begging practice environment has led more and more lawyers to announce that criminal cases that do not appear in court will be rejected. Some lawyers even claim to refuse to accept criminal cases.
(2) Due to the omission of legislation, it is difficult for lawyers to practice.
First of all, it is difficult for lawyers to obtain evidence.
According to Article 37 of the Criminal Procedure Law, defense lawyers need to obtain the consent of witnesses or relevant units and individuals when collecting evidence materials. This undoubtedly creates additional obstacles for lawyers.
The former Provisional Regulations on Lawyers stipulated that lawyers had the right to investigate and collect evidence. The Criminal Procedure Law stipulates that anyone who knows the circumstances of a case has the obligation to testify. The newly revised Criminal Procedure Law only targets this "obligation to testify" at public security organs, procuratorial organs and people's courts, but it is another matter for lawyers. It affirms that witnesses, relevant units and individuals have the right to refuse lawyers' investigation, which is undoubtedly a historic retrogression in legislation and makes lawyers' investigation and evidence collection more difficult.
Secondly, it is difficult for lawyers to read papers. According to Article 43 of the Criminal Procedure Law, judges, prosecutors and investigators must collect all kinds of evidence that can prove the guilt or innocence of criminal suspects and defendants and the seriousness of the crime according to legal procedures. In other words, the evidence collected by public prosecutors and legal personnel includes not only the evidence that criminal suspects and defendants are guilty, but also the evidence that they are innocent and guilty. However, lawyers have no right to read papers in public security organs, or even to ask questions about cases; To the public prosecution agency, lawyers can only consult litigation documents and technical appraisal materials, but they still have no right to consult evidence. The evidence transferred by the public prosecution to the court is the evidence of "accusing the criminal facts". Obviously, the public prosecution organ will not transfer the evidence that is not conducive to the accusation, that is, the evidence that is innocent or light. The evidence obtained by defense lawyers in the people's court is the evidence that the public prosecution selectively obtains and accuses the criminal facts. Then I would like to ask, how can lawyers consult the evidence that the public security and procuratorial organs are obliged to collect and have collected that the suspect is innocent and guilty? In fact, it is impossible for lawyers to access this part of the evidence, even the court can't see it.
In the original Criminal Procedure Law, although lawyers entered the proceedings late, they can still make a difference in this gap, because they can consult all the file materials, and almost every case contains evidence beneficial to the defendant. With the implementation of the new criminal procedure law, lawyers have completely lost the opportunity to consult these evidences. On the other hand, lawyers have no right to investigate in the investigation stage, but the times have changed in the prosecution stage, and they can only consult litigation documents and appraisal materials, but can't investigate. If lawyers really want to investigate, if these witnesses have been questioned by public security organs and procuratorial organs, but because of a long time or other reasons, they are inconsistent with the investigation by public security organs and procuratorial organs, lawyers will run into the huge network of Article 38 of the Criminal Procedure Law, "... inducing witnesses to change their testimony ... should be investigated for legal responsibility according to law". Public security organs and procuratorial organs have the obligation to collect evidence of innocence or misdemeanor, but they have no obligation to transfer it. At the same time, it is very difficult for lawyers to collect evidence on their own, which undoubtedly drives lawyers to a dead end, thus depriving suspects and defendants of their right to defense in disguise.
The trial mode of combining prosecution and defense requires rational confrontation between prosecution and defense in facts, evidence, law and many other aspects, so that neutral judges can get correct judgments. The premise of confrontation is at least a formal relative balance of power. The actual result is that the prosecution has strong financial support, backed by public security, procuratorial and other state organs to collect evidence, while lawyers have nothing but eloquence, and there are various unfair restrictions in law and legislative omissions. There is still the slightest "balance of power". How can it be "confrontation"? Without this minimum condition, the result of the trial of prosecution and defense will inevitably fail.
(3) Lawyers' practice is risky.
The lawyer profession itself is a challenging profession. No matter in criminal, civil, administrative and other litigation fields or other non-litigation fields, safeguarding one party's interests will inevitably anger the other party, and both maintenance and anger are open and tit-for-tat, which doomed the bumpy road for lawyers, as Comrade Hu Qiaomu realized, "You are wearing a crown of thorns." The author once served as the defendant's defender in a case of injury and death. At the end of the trial, he was besieged by relatives of several victims. Fortunately, under the escort of the judge, he was able to "flee in a hurry", and Ma's experience of being injured and disabled by acting as an agent went to extremes.
However, personal infringement of lawyers by citizens is a minority after all, and the facts are clear and the legal relationship is clear. In contrast, the infringement of lawyers by relevant power organs or people who manipulate certain powers is much more common, complicated and helpless, and its harm is much greater.
According to Article 8 of the Criminal Procedure Law, people's procuratorates exercise legal supervision over criminal proceedings according to law. In other words, the public prosecution, as an opponent of defense lawyers, is also a referee to a certain extent. This is absurd in logic and theory. In this case, defense lawyers will only "have nothing to fear" except occasionally having to participate in "competitions" with trepidation.
Second, the reason why lawyers are difficult to practice.
(1) At present, China lacks a specific, practical and operable legal guarantee mechanism for lawyers' practice.
It should be said that the public, procuratorial and legal departments have no independent and special rights protection mechanism on the judicial front. But their similarities are all different powers, and power itself is a natural barrier to protect rights, especially in China, a country with a strong concept of "official standard". Lawyers only have rights, not any power. How to ensure that lawyers fully exercise their rights and safeguard the legitimate interests of clients is not only related to the rise and fall of the lawyer industry itself, but also directly affects the process of democracy and legal system in China. However, in this respect, although our laws have provisions in principle, they are at least feeble. Just as Minister Xiao Yang was interviewed by the reporter of Lawyer China, the reporter asked: What measures have lawyers taken to safeguard their rights after the implementation of the new Criminal Procedure Law and the Lawyers Law? Minister Xiao Yang's answer is roughly as follows: 1. Judicial administrative organs at all levels and lawyers' associations shall promptly report and actively carry out their work when they find that lawyers' rights and interests have been illegally violated; Second, actively coordinate with relevant departments to win more support for lawyers' work, protect lawyers' legitimate rights and interests according to law, and ensure lawyers perform their duties according to law; Third, actively negotiate with relevant departments to properly solve the incidents in which lawyers' rights and interests are infringed. Objectively speaking, what can the judicial administrative organs do besides such coordination?
The confusion of lawyers' practice without legal guarantee mechanism is reflected in two aspects:
First of all, when the rights and interests of lawyers are infringed by administrative organs, or administrative organs fail to perform their duties according to law, lawyers can bring administrative proceedings according to Article 11 of the Administrative Procedure Law. However, the following adverse consequences have at least the following aspects:
First, even if the lawsuit is successful, the administrative organ still fails to perform its obligations. What can the court do? In a country lacking legal authority, such examples abound, and it is still difficult for lawyers to defend their rights in the face of this best result.
Second, can you use your hard-earned money to fight a protracted lawsuit with the administrative organs supported by the state finance or people with state salaries?
Third, we have offended these functional departments, but they just don't cooperate with you. How do you protect the legitimate rights and interests of the parties? Besides, can lawyers stand "frying their own casserole for other people's beans"? Casserole is a lawyer's specialty.
Although this situation makes the way for lawyers to defend their rights exist in name only, after all, there is a complaint, and other situations are even more mysterious. What should I do if my rights are violated by the procuratorate and the court? The law seems to have provisions, which are complaints and accusations! But to whom do you complain and accuse? Who will accept it? There is no clear legal provision, only "Heaven is above".
Here, the author reminds me of the experience of lawyer He Xin of Jiangxi Dahua Law Firm. Li Chunting, president of the People's Court of Lianhua County, Jiangxi Province, is a practicing lawyer registered by the judicial department. He deprived lawyer He Xin of his litigation right to appear in any court in Lianhua County in writing. This matter, even a slightly sensible person, also understand who is right and wrong. Lawyer He Xin appealed and sued, but he sued for several years. So far, no agency has accepted it, giving him a slightly specious "statement", and Li Chunyuan sued lawyer He Xin for libel, and was immediately accepted as soon as he sued.
If the progress of every era and every civilization needs someone to make sacrifices and pave the way, such sacrifices are worthwhile. But on the contrary, when such a sacrifice is submerged in impetuousness and noise, it is not worth it. Therefore, as a lawyer whose duty is to safeguard the legitimate rights and interests of the parties, when their legitimate rights and interests are violated, they often keep silent and submit to humiliation. This has caused some functional departments to trample on the rights of lawyers more unscrupulously, and ultimately trample on the rights of the whole society.
Brougham, a famous British lawyer, believes in the principle that in order to save and protect clients, lawyers should make sacrifices at any cost regardless of any risks. This is the bounden duty of a lawyer.
But when a lawyer makes sacrifices and takes risks, he can't save not only the client, but also himself. This barrister must be another story. And this is exactly the embarrassment of China's lawyer.
(2) The ideas of "procedural instrumentalism" and "procedural nihilism" have also greatly hindered lawyers' practice.
The so-called procedure refers to the process of making legal decisions in a certain order, way and step in order to pursue and realize a certain purpose. Its purpose is to prevent or limit the arbitrariness, arbitrariness and abuse of judicial discretion, and to safeguard the objectivity and fairness of the law. It has its own independent value.
However, the values of China traditional culture emphasize the entity, but ignore the procedure, which is only a tool to achieve the goal. As long as the goal can be achieved, the choice of tools is not important. In China's current judicial system, this instrumentalism is reflected in both legislation and law enforcement. Article 138 of the original Criminal Procedure Law stipulates that if the people's court of second instance finds that the people's court of first instance has violated legal procedures, which may affect the correct judgment, it shall revoke the original judgment. Article 153 of the Civil Procedure Law being applied still stipulates that if the original judgment violates legal procedures and may affect the correct judgment of the case, the original judgment shall be revoked and sent back to the people's court that originally tried the case for retrial. In other words, if the legal procedure is violated, but the correct judgment is not affected, the original judgment shall not be revoked or sent back for retrial. The newly revised criminal procedure law has made historic progress, but the instrumentalism in law enforcement is unlikely to change in the short term. For example, in a county of Henan Province, the incidents of kidnapping hostages for debts have intensified, with more than 60 incidents in one year. Illegal detention is a criminal act, but the leaders in charge of politics and law in this county have argued this way: "China's laws are not perfect, especially economic disputes. We have to pay this fee and that fee, and we can't implement it until the prosecution, trial and judgment take effect. It is common for triangular debts to be repaid once a year or two, or this method is the most direct and simple. " In order to achieve the goal, not only do you not need the minimum procedures, but you can even achieve it through criminal means, which shows how deeply rooted this old concept of instrumentalism is.
In a sense, the lawyer system is a kind of litigation procedure. In the shadow of instrumentalism and procedural nihilism, lawyers are welcome when they can be used. On the contrary, when lawyers don't agree with their opinions, when lawyers' work is not convenient for them to do whatever they want, they will not cooperate and even blame lawyers. This is a major ideological source of lawyers' difficulties in practicing.
(3) Some lawyers in China do not pay attention to their own image and maintain the overall image, which leads to unsatisfactory lawyer image and low social evaluation, which increases the obstacles for lawyers to practice.
It is manifested in two aspects. On the one hand, lawyers fight against each other, and law firms denigrate and belittle each other, lacking the spirit of unity and mutual assistance, and unable to form a unified force, which greatly weakens the role of this practice group in social civilization and progress. At the same time, even lawyers lack the minimum respect, how can we expect social respect?
On the other hand, individual lawyers have extremely poor moral quality, and even have no basic principles of being a man, but they are swindling and cheating in all walks of life in the name of lawyers. In their concrete practice, instead of studying the legal relationship and legal facts of the case itself, they always talk about "reconciliation" and "blending", turning lawyers into brokers, litigators and even corrupt people in the judicial process. The existence of these lawyers has brought a great negative impact on society and has a devastating impact on the overall image of lawyers. 〕
In practice, we found such an interesting phenomenon that there are two kinds of people who have the highest evaluation of lawyers and can actively cooperate with their work. One is that they have never contacted a lawyer. In the minds of such people, the sacred aura of lawyers still remains. Second, I have only come into contact with decent and virtuous lawyers. Such people follow the example of lawyers. It can be seen how important the overall image of lawyers is to their practice.
(4) There are almost no lawyers who perform their duties in all sectors of society, so that the value recognition of lawyers in all sectors is generally poor.
Due to the late development of China's lawyer system, many people from all walks of life poured into the lawyer team, but few people flowed from lawyers to other industries. This has caused lawyers to have a deep and detailed understanding of other industries in society, while other industries have a rough and shallow understanding of lawyers. Lawyers can understand the difficulties, hardships and values of other industries, while it is difficult for other industries to understand the difficulties, hardships and functions of lawyers. The lack of natural ties makes communication more and more difficult, which is the reality that lawyers in China are different from those in Europe and America.
(5) The legal concept is indifferent and judicial fraud is rampant, which reduces the role of lawyers and makes it difficult for lawyers to practice normally.
China has been a society ruled by men for thousands of years. The concept of legal system and democratic consciousness are almost blank. Under the influence of such historical inertia, even the normal practice of lawyers often depends on factors other than human feelings and relationships. The fatigue of lawyers is often not due to the hardships of the case itself, but to factors outside the case. What's more, some law enforcement officers completely avoid lawyers, "don't do things without benefits, but do things without benefits", and judicial fraud is getting worse. Normal services are struggling, and abnormal transactions are popular, which is not uncommon in reality.
Third, the countermeasures should be taken in the face of the lawyer's practice dilemma.
First of all, strengthen the role of the Bar Association, so that lawyers have a real sense of belonging.
Admittedly, the Lawyers Association has done a lot of work on lawyers' rights protection, but it is also undeniable that the work of the Lawyers Association is still far from the requirements of lawyers. The author suggests that in order to provide legal protection for lawyers' practice, each session of lawyers' association should set up a permanent organization, hire specialized lawyers, and take part of the membership fee of lawyers' association as a lawyer's rights protection fund. When the legitimate rights and interests of lawyers are infringed, the lawyers appointed by the Lawyers Association are the natural agents of the infringed lawyers. The expenses are allocated from the rights protection fund. So that individual lawyers will not be isolated or caught in a protracted lawsuit when they are in trouble, so that they cannot carry out business. Only with strict organizational guarantee and legal guarantee can lawyers confidently exercise their duties of supervising the correct implementation of the law and dare to fight against unhealthy social practices and judicial fraud. Otherwise, letting lawyers fight against powerful social evils is tantamount to throwing eggs at stones, which is obviously not the best way for lawyers who are good at sizing up the situation. In the long run, lawyers will exist in name only, and the construction of democracy and legal system will eventually become empty talk.
Secondly, it not only embodies the independent value of procedure in legislation, but also embodies the independent value of procedure in law enforcement, so as to realize real judicial justice.
The new criminal procedure law has made historic progress in affirming the value of procedural independence. In other words, as long as there are procedural violations in the lawsuit, the result of the lawsuit will be denied, not whether it will affect the fair judgment. However, with the implementation of the new criminal procedure law of public security, prosecution and law and the promulgation of its provisions, rules and explanations, a complete and unified criminal procedure law has been broken into pieces, and their formulation has a * * * principle, that is, at the same time, the education of "procedural independence value" should be strengthened among law enforcers at all levels and departments, so that judicial justice and fairness can be realized not only in a visible way.
Third, through various media, vigorously promote the image of lawyers, restore the true nature of lawyers, and reduce social prejudice.
It should be said that among lawyers, advanced figures, advanced deeds and successful cases abound. Every successful lawyer often has an extraordinary experience and many cases to be proud of. However, due to various reasons, including the understanding that "the success of lawyers is often the failure of public security law", the publicity of lawyers is limited to a few people who have been publicized about the internal punishment of lawyers, and the public knows little about it. In particular, the nature of lawyers and law firms is still vague in legislation at present, so it is no wonder that the public is biased and misunderstood. Therefore, clarifying the nature of lawyers and law firms in legislation, vigorously publicizing and paying attention to the guidance of public opinion are effective ways to solve the difficulties of lawyers' practice.
Finally, "shaping the image externally and strengthening the quality internally" should not only stay in words, but also be implemented in every lawyer's actions.
This should be done from two aspects. On the one hand, all lawyers should unite to form a powerful just force to safeguard social fairness and justice, so that the society can see the historical role played by lawyers in promoting social civilization and progress, and at the same time consciously exercise self-discipline. Every lawyer will add luster to the image of China lawyer from his words and deeds. The lawyer's road is the lawyer's own, and the image of the lawyer is also shaped by every lawyer. On the other hand, as Professor Jiang Ping said, only when your career is glorious and sacred can you be glorious.
On the other hand, for the scum of our lawyers, we should follow such a rule: whoever slanders the lawyer's image, every lawyer should stand up and smash his job. Only when the lawyer's overall image as a lawyer is good will the society recognize it and improve its social evaluation. Only on this premise can the lawyer's practice environment be improved.