On The Exemption Right Of Defense Lawyer

Criminal defense system is an important component of the criminal procedure system, whether the Criminal defense system is perfect relate to whether the purpose of criminal penalty for crime and protection of human fights can realize,Relate to achieving the goal of procedure justice that criminal procedure is pursuing.However,if the defense lawyer's own personal safety are not guaranteed and reduced to prosecuted,how can we expect them to be able to protect the defendant's legitimate rights and interests and achieving the criminal justice! Fortunately,The revised "Attorney law" made clear of our country's trial speech exemption right.This is of great significance for the establishment and improvement of our country' defense exemption right.However,just because "Attorney law" and the related law is principle and more importantly because of the lack of relief and protection procedures of the exemption right,it is easy to become empty words.Therefore,studying how to implement the exemption right of defense counsel,can not only protect the rights of defense counsel,but also enhance the enthusiasm of lawyer to engage to defense.It plays an important role in justice.In addition to the preamble and the conclusion of this article,the body is composed of the four parts.The first part introduce the concept,implication and legislative practice of the exemption right.After integrating research results of Scholars at home and abroad who make a different definition of the concept,we can see that the exemption right of defense lawyer is one of rights which the lawyer in the criminal process can discharge the Judicial accountability on practicing the special words and deeds from legal action,because of fulfilling a duty to defend.Specifically,It includes three aspects:who enjoy exemption right from prosecution,which right can exempt and what time be able to enjoy exemption from prosecution.In addition,the exemption right of defense counsel abroad has gone through a long process from the ongoing exploration to mature,which is very instructive to our country' introducing the right.The second part is to analysis the obstacles of our country' exemption right of defense counsel.The conflict between exemption system and the idea of China's traditional culture is barrier to the development of exemption right.In our country,even though there are indeed some bad examples of lawyers who make the exemption right lose the masses,but in essence, the crux of the problem is the relevant members of the judiciary uphold the strength of lawyer as aliens to a large extent.In judicial practice,they are not to uphold the law as the society backbone of fair justice and protecting human rights,but abuse power to revenge and uphold the lawyer' arguing in accordance with the law as an affront to their authority.It is precisely because of the impact of the idea of our country above and the defect of provides 306 in criminal law,that results in lawyer' self-interest having no guarantee which occurred frequently,resulting in lawyer' widespread panic for engaging in criminal defense, and even some direct denying to handle criminal eases which is an very unusual phenomenon, this hurt the lawyer' initiative of handling criminal cases seriously.The legal environment of lacking recognition and understanding is difficult for exemption right of defense counsel to implement in judicial practice.The third part of the article is research on how to improve the exemption right of defense counsel.Any one of the new systems can not be perfect when they are set up.Of course,the transformation of concept is a fundamental driving factor,but the legislation improvement should be priority.We can make specific and generalized provisions in legislation on the right for the problem of exemption' content to narrow.In addition,only improving the legislative of exemption right is far from enough,more importantly,we must improve relevant laws related to the exemption right that is the controversial "Penal Code" Article 306.Even though the theoretical and lawyers' circles strongly advocated the abolition of the article,but I think the original intention of the article is to punish the illegal lawyers,that is nothing wrong and in other countries there are also provisions which make lawyer as the special criminal body. The fundamental problem is that the provision is too principle which leave too much judicial discretion space for the Judiciary,leading to the provision in practice was frequently abused. Therefore,we only need to improve the clause from the legislation and technology with the purpose of implementation of exemption right."There is no right if no relief".The last part of the thesis' body,in addition to recommend to improve lawyer' professional ethics to construct lawyer' exemption environment,the emphasis is to set up a mechanism with which to prevent violations of Judiciary to exemption,such as avoiding system for some specific eases concerning suspected criminal lawyer,general exemption right of suspected lawyers for violating the law and judicial review mechanism for lawyer's committing a felony in emergency situation.In addition,the exemption provisions of the defense lawyer does not mean that all the acts of the lawyer could be exempted,in order to distinguish between the lawyer' general acts in violation of professional ethics and the criminal acts,it is recommended to set up a hearing procedure by the Bar Association.the hearing members includes the judicial officers,jurists and lawyers to participate.In order to guarantee the exemption right that conferred on the defense lawyer,setting up such a connection Procedures is like a filter to buffer strong power's impact to the defense lawyer.