On The Crime Of The Defender Or The Agent Destroying Or Forging Evidence Or Impairing Testimony

The amendment to the Criminal Law in 1997 adds the provision of Article 306, that is, the Crime of the Defender or the Agent Destroying or Forging Evidence or Impairing Testimony, which is also discussed in this paper. The aim of adding this article is to regulate the conduct of the defender and the legal agent, ensure the smooth undergoing of criminal procedure and achieve fair trials. However, since the lawyer system was underdeveloped in China, there were different opinions on the necessity of adding that article. With the application of Article 306, more and more related problems are exposed. Especially that some lawyers are put into prison unjustly because of the incorrect application of Article 306 sparks a huge controversy. Besides, there is a call for abolishing this crime to ensure the normal conduct and protect the lawful rights of lawyers. After much research and thinking, the author agrees on abolishing this article, but currently this article should be understood and applied correctly. This paper discusses the Crime of the Defender or the Agent Destroying or Forging Evidence or Impairing Testimony from the following five parts:Part one studies the background and the legislative process of this crime. It points out that there was dispute on the establishment of this crime at the very beginning and the different opinions are introduced in detail.With the legislative background and the legislative intent, part two analyses some controversial issues on objective element of this crime by analyzing different views and using law interpretation, including what In Criminal Proceedings and Evidence mean and how to define the objective behaviors of this crime accurately, such as Destroying Evidence, Forging Evidence, Impairing Testimony, Inducing and so on.Part three identifies the criminal patterns of this crime, including it is behavioral crime or consequential crime, how to distinguish its abortive and accomplished forms and the comparative study of this crime and other relevant crimes in Impairing Testimony in Chinese Criminal Law, to have a clear understanding of this crime.Part four discusses the current dispute on retaining or abolishing this crime, expounds the opposing views and leads to the further thoughts on the limitations and perfection of this crime.Part five makes a conclusion that Chinese criminal legislation is different from international one by comparing them. Based on Criminal Substantive Law, Criminal Procedure Law and the relevant regulations of law system, this part points out many limitations of this crime from viewpoints of theory and judicial practice: first, it lacks for explicitness and modesty; second, it could not be connected nor in balance with relevant articles; third, it prevents the formation of prosecution– defense– adjudication litigation model; fourth, it increases the risk of lawyers'practice; fifth, it could be included into other relevant crimes, so there is no necessity for its existence. Set lawyer suspected of such crimes made special handling procedures, implementation of the criminal law immunity.