The Theory On The Crime Of The Obstruction Witnessing

The article 306 of the new Criminal Code—the crime of destruction or false evidence and obstruction witnessing by the Defender and Legal Representative has been published and arouse community debate, and in the subsequent judicial practice, some lawyers were condemned by the judicial when they suspected of this offense in the course of the criminal defense practice. At the beginning of the 2010, the case against Li Zhuang arouse great interest of the news media and cause more heated debate among the scholars, lawyers and judicial offices.The case against Li Zhuang is only one of many cases which caused by the incrimination of the article 306 of the new Criminal Code. I suppose the experts and scholars should go on concerning on this charges. So far, the debates about this case are more from the reasonable and probability of the program than form discussion about charge which rooted on the physical point of the criminal law. In fact, how to understand the contents of the article 306 of the new Criminal Code is not only have great significance to the case against Li Zhuang, but also has important meaning to the terms of normalization of Justice and to detail the basic theory of the criminal law. In this article, the author's attitude based on parts of the focus which consists in the case against Li Zhuang, to analyze the article 306 of the new Criminal Code, hope to study and improve the relative aspects of the Evidence of criminal obstruction.The article is divided into three parts.In the first part, it is the analysis of the legal background, the circumstance of the judicial practice, and the elements of the article 306th. Firstly, in this part for the awkward and vulnerable position of the lawyer in the justice sector and the course of their practice, the author introduced the background of the article 306th and some realistic problems which were caused in the judicial practical procedure. Secondly, though in-depth analysis the legislative construe of the article 306, the author specific analysis the article 306th start the subject, object, subjective, objective elements of the four form.In the second part, it is the problems which have been exposed in the course of the current judicial practice. Firstly, in this section, the author mainly to connect the object codes of the living law, and to analyze the first part, then to detail the deficiencies and shortcomings of this charge which exists in the practice from such prospects as criminal legislative concept, criminal justice theory, and appliance in judicial practice. Secondly, for clarify in what way should be the standard accomplished of this charge, the author to expand the discussion.The third part is the idea about how to perfect the article 306th. To face the unperfected aspects of the article 306th in which exists in the judicial practice process, the author to start from whether the legislative procedure has defect, whether the relative descriptions in the sub criminal code detail, from to protect the legitimate rights and interests of lawyers and to improve appropriate disciplinary measures, to put forward some more reasonable proposals about this charge.