Problems and Countermeasures in Lawyers' Participation in Defense and Representation

Author: Li Baoyue
Publisher:
Publish Date: 2006-03-01
Features: "Problems and Countermeasures in Lawyers' Participation in Defense and Representation" is one of the Ministry of Justice's 1998 "Research Projects on Rule of Law Construction and Theoretical Research in Law" that I organized. Although my research team and I conducted several countermeasure studies and published some research findings after the project was approved, due to my poor health condition, the task was not completed in a timely manner, which deeply troubled me! Thanks to the joint efforts of my research team and especially the assistance of graduate students Chen Xuequan and Zhang Shu in October 2004, the project was finally completed, and I was immensely relieved. With the support of Professor Guo Chengwei, former Director of the Research Office of China University of Political Science and Law, and Director Li Chuanggan of China University of Political Science and Law Press, the completed research findings have now been published, which brings me great satisfaction and gratitude!
Over the decades of teaching criminal procedure law, I have been deeply interested in and actively engaged in criminal practice for lawyers. In October 1993, Professor Chen Guangzhong of China University of Political Science and Law was commissioned by the Legal Affairs Commission of the Standing Committee of the National People's Congress to organize a team of criminal procedure law professors and experts to study the revision of the Criminal Procedure Law and propose amendments. I was fortunate enough to participate in the drafting of the defense and representation system. The research team completed the "Draft Amendment to the Criminal Procedure Law of the People's Republic of China" in June 1995. Subsequently, following the content of the draft, the team provided explanations and discussions on the most important revisions in each chapter, which were published by China Zhengfang Press as "Draft Amendment to the Criminal Procedure Law of the People's Republic of China and Supporting Arguments." I was also fortunate enough to take on the argumentation work for the chapter on defense and representation, mainly addressing eight issues: 1) issues related to representation; 2) the timing of lawyers' involvement in criminal proceedings; 3) the issue of lawyers meeting with detained suspects and defendants; 4) the issue of lawyers' recusal; 5) the issue of refusal of defense; 6) the scope of appointed defense counsel; 7) the principle of professional confidentiality; 8) the prohibition of acting as both defense counsel and representative in the same case.
On March 17, 1996, the Fourth Session of the Eighth National People's Congress passed the "Decision of the National People's Congress on Amending the Criminal Procedure Law of the People's Republic of China." According to this decision, 109 amendments were made to the law, resulting in a total of 225 articles, an increase of 61 articles compared to the original. Statistics show that approximately 65% of the articles proposed in the "Draft Amendment and Supporting Arguments" were fully or partially adopted in the new Criminal Procedure Law, indicating that the book played a significant role in the revision of the law. However, it must be acknowledged that "some suggestions in the book were not incorporated into the revised Criminal Procedure Law and should now be considered in the context of reforms in the criminal justice system."
Building on previous research, my research team and I have continued our relentless efforts to study the problems and countermeasures related to lawyers' participation in defense and representation in China, taking into account the issues arising from the implementation of the revised Criminal Procedure Law, as well as international conventions such as the "Universal Declaration of Human Rights" and the "International Covenant on Civil and Political Rights," particularly the "Basic Principles on the Role of Lawyers" by the United Nations. Our research focuses on addressing the main issues faced by lawyers in criminal proceedings during the investigation, prosecution, and trial stages, with a particular emphasis on solving problems such as difficulties in meeting with clients, obtaining evidence, reviewing case files, and having defense opinions accepted. We have also studied and argued for the basic principles of lawyers' participation in criminal defense and representation, striving to learn from the relevant experiences of other countries or regions while staying true to China's national conditions.
The research has resulted in 25 papers, compiled into a book. These papers propose revisions to the relevant provisions in the current Constitution, Criminal Procedure Law, Lawyer Law, and the Legal Aid Regulations of the State Council, aiming to clarify principles, combine practice, focus on cutting-edge issues, and contribute to the development of criminal practice for lawyers as an important window for the country's democratic rule of law. The main specific suggestions are as follows: 1) Amend the Constitution to grant defense rights not only to defendants but also to suspects, establishing a constitutional basis for suspects' defense rights, while stipulating that courts, procuratorates, public security organs, national security organs, military security departments, and national legal aid institutions have the obligation to ensure they receive defense and provide legal aid in accordance with the law; 2) Establish the principles of professional confidentiality for lawyers, criminal immunity, the duty of truthfulness to the court, the principle of maintaining the integrity of the court, and the principle of judicial fairness; 3) Confirm the legal status of lawyers as defense counsel during the investigation stage; 4) Grant lawyers the right to accept a commission and be present when suspects are first questioned by investigative organs; 5) Ensure that suspects equally enjoy the right to lawyers for legal assistance; 6) Allow lawyers to meet with detained suspects and defendants without eavesdropping, inspection, or breach of confidentiality, with the number of lawyers, meeting time, and frequency determined by the lawyers; 7) Grant lawyers the right to review, excerpt, and copy case files at the procuratorate after the investigation is concluded and the case is transferred for prosecution, and grant the same right to defense counsel at the trial stage to access case files at both the court and the procuratorate; 8) Ensure and expand the rights of lawyers to investigate and obtain evidence, removing the current legal provisions that unduly restrict lawyers; 9) Establish a recusal system for lawyers; 10) Improve the system for the refusal of defense and the representation system for lawyers in litigation; 11) Improve the legal aid system and draft a Legal Aid Law for China as soon as possible.
I believe that with China's growing comprehensive strength and the continuous development of democracy and the rule of law, especially the need to align with international legal standards signed by the Chinese government, the legislative suggestions in this book will certainly attract attention and in-depth discussion from the legal academia and judicial practice, further promoting the reform and improvement of China's criminal defense and representation system. Due to our limited expertise and the rich diversity of criminal defense and representation practice, some issues may not have been addressed or may contain inaccuracies in the discussion. We sincerely welcome readers' valuable feedback. Additionally, to provide a more comprehensive argumentation, we have included some articles from before the project was approved. Please note that the citation of legal provisions in these articles may differ from the current law, and a special explanation is provided.