A Theory On The Defense Lawyer's Duty Of Loyalty

The defense system is one of the focuses of the current criminal procedure and judicial reform in China.In recent years,China's theoretical scholars and practioners have begun to pay attention to the loyalty obligation of defense lawyers and put forward some principled suggestions.However,there is a lack of in-depth study and systematic interpretation of the specific connotation and related requirements of the loyalty obligation of defense lawyers.This paper is devoted to exploring a theory that can reasonably interpret the loyalty obligation of defense lawyers.Combining with the problems in China's criminal defense system and the relevant elements abroad for reference,it tries to explore the direction of the defense lawyers' duty of loyalty and the entire defense system.This paper consists of six chapters,including introduction,body,and conclusion.The first chapter is "the theoretical basis of the defense lawyer's duty of loyalty".Firstly,based on the role orientation of the defense lawyer in a modern rule of law country,the paper makes a comparative study of the role orientation of the defense lawyer from two dimensions: the dimension of state power and the dimension of legal procedure.It provides an analysis of the status orientation of the defense lawyer under the background of the rule of law.Secondly,based on the influence of different criminal litigation structures on defense lawyers' performance of loyalty obligations,this paper analyses the functional orientation of defense lawyers in modern rule of law countries,and elaborates on the impact of changes in China's criminal litigation structure on defense lawyers' performance of loyalty obligations.Finally,the particularity of lawyer's professional ethics under legal professional ethics is interpreted.Based on the lawyer-client relationship,the particularity of lawyer's professional ethics is analyzed from the perspective of the party loyalty principle and the maintenance of the fiduciary relationship between lawyers and clients.The second chapter is about the positive connotation of the defense lawyer's duty of loyalty: striving for clients' maximum benefits.Firstly,from the perspective of trial-centered doctrine,defense lawyers should attach importance to the fulfillment of the three basic obligations of meeting,marking andinvestigating,in order to overcome the drawbacks of investigation-centered doctrine.Secondly,the substantive reform of court trials requires defense lawyers to make adequate preparations before the court to effectively deal with the phenomenon of court trial falsification under the background of the new "strong accusation and weak defense",and to engage in substantive confrontation with the prosecution in court trials.Finally,defense lawyers' performance of the duty of loyalty must rely on a certain "external force" to form a defense force,in order to maximize clients' interests.The third chapter is about the negative connotation of defense lawyers' duty of loyalty: the interests of clients should not be impaired.The negative duty of loyalty is directly manifested in the maintenance of the fiduciary relationship between the defense lawyer and the client.It can be said that it establishes a professional bottom line for the defense lawyer,that is,the interests of the client should not be impaired.Firstly,the defense lawyer has the duty of keeping secrets to ensure the trust and honesty of the defense lawyer to the client.Secondly,we should adhere to the prohibition rule of conflict of interest,which is an important professional ethic derived from the loyalty obligation of lawyers,and the lawyers' duty of loyalty is the value of the prohibition rule of conflict of interest.The prohibition of conflicts of interest in criminal defense in our country should be centered on the interests of clients,adopt the standard of "reasonable suspicion on basis",make typological analysis of conflicts of interest,and strengthen the system construction of preventing conflicts of interest.Thirdly,the theory of independent defense should be restricted.There should be an establishment of consultation mechanism and withdrawal mechanism,an establishment of forbidden zone for independent defense,a construction of typified decision-making mechanism,and an establishment of the principle of priority of real obligation when the actual interests of the defendant are damaged.Besides,there should be a restriction on the independent defense in lenient cases of confession of guilt and punishment.The forth chapter discusses the boundary of defense lawyers' duty of loyalty:the real duty to the court.The duty of loyalty of the defense lawyer also has acertain limit,that is,"the real duty to the court".In the process of criminal proceedings,the defense lawyer should not only obey the client's orders,but also perform his duties honestly and impartially.He should not take positive actions to deceive the judicial organs.This is the essence of the true duty of the defense lawyer.True obligations also set "boundaries" for the fulfillment of loyalty obligations.Because of the special status and loyalty requirements of defense lawyers,their real obligations to the court show negative,one-sided and specific characteristics of the object.The real obligation of defense lawyers to the court is determined by their social responsibility,the basic goal of the true discovery of criminal proceedings,the objective need of safeguarding judicial authority,and the inherent requirement of the sound development of lawyers' profession.We should rebuild the system of the real obligation of our defense lawyers,clarify the way the defense lawyers deal with false evidence,distinguish the real obligation from the defense strategy,and establish the basic boundaries of the real obligation of prohibiting damage to the real entity.The fifth chapter discusses the conflict and balance between defense lawyers' duty of loyalty of and their real duty of courts.In the United States,Japan and Germany,there are some disputes in theory and practice in dealing with the conflict between loyalty obligation and real obligation.This conflict is caused by the dual roles of the defense lawyer as the defendant's "enthusiastic spokesman" and "court officer".Due to the difference of litigation mode and judicial concept,how to deal with the conflict between loyalty obligation and real obligation in practice of our country restricts the fulfillment of loyalty obligation of defense lawyers to a certain extent.The defense lawyer shall not be obliged to disclose false material evidences provided by the defendant and false statements or defenses in court.However,in terms of the defendant's illegal or fraudulent acts,due to the lawyer's own social responsibility and the obligation to safeguard the fair operation of the judicial process with the court,the defense lawyer has a positive obligation to expose them.In addition,defense lawyers should be granted the privilege of exemption from evidence,and the prosecution mechanism for lawyers' perjury crime should be improved to limit the negativeimpact of the expansion of real obligations on the performance of loyalty obligations.The sixth chapter discusses the safeguard mechanism of the loyalty obligation of defense lawyers.The fulfillment of the duty of loyalty of defense lawyers needs to establish corresponding safeguard mechanism.The guarantee mechanism of loyalty obligation needs to be constructed from three aspects:entrance mechanism,exit mechanism and punishment mechanism.First,we should establish the "admission mechanism" of criminal defense.The admission system of criminal defense sets the first threshold for the duty of loyalty,which can effectively improve the quality of defense.Secondly,we should establish the withdrawal mechanism of criminal defense.Our country should construct the withdrawal mechanism of our defense lawyers from three aspects: the prevention mechanism before withdrawal,the consultation mechanism and the safeguard mechanism after withdrawal.Finally,we should improve the "punishment mechanism" for lawyers' anomie.As for lawyers' breach of loyalty obligations,except for their own inner moral restraints,they should also be implemented through certain external punishment mechanisms.Besides,the Procedural Regulation of lawyers' disturbance of court order should be improved to prevent the investigative organs from abusing their power to investigate lawyers' criminal responsibility.In the conclusion,the paper points out that the future research on the loyalty obligation of defense lawyers should only focus on the decisive factor of the lawyer's positioning,that is,the lawyer-client relationship.At the same time,the paper also pays attention to the combination of the experience of developed countries under the rule of law and the reality of China,the combination of practical cases and theoretical perfection,and the combination of macroscopical nature of legislative provisions and the operability of industrial norms.Through using "system norms" to achieve "rational practice",the ultimate goal is to unite the ideal of "lawyer-client" relationship and the rational practice.