Defense Lawyers Professional Secrecy System

The professional confidentiality system of the defense lawyers is an important theoretical issue in criminal procedure. Defense lawyers are bound to start a comprehensive, thorough communication with litigants in the participating process of criminal procedure, inevitably including circumstances and information related to litigants'interest and that the litigants do not want to be disclosed, such as state secrets, commercial secrets, personal privacy, and even the facts and evidence of crime information of litigants that the judiciary has not yet mastered. The system should become defense lawyers'legal obligations and their professional ethics for ensuring the fully function of the defense system.The professional confidentiality system of the defense lawyers include two aspects—obligation confidentiality and privilege confidentiality. These two aspects are interconnected and inseparable just like two sides of a coin. Currently, most countries have prescribed the system as one of the most important rule in the judicial system. In China, confidentiality system has little protection in historical tradition and there is a big gap in China in the legislation and practice of professional confidentiality with common practice in the world. The regulations of professional confidentiality system of the defense lawyers are mainly reflected in the Lawyers Law and the Legislative Code of Conduct for Lawyers File and others. Lawyer Law which was newly revised in 2007 made further improve the protection of the confidentiality system of the defense lawyers. However, in generally, our confidentiality system of the defense lawyers is still relatively backward, there are many deficiencies, such as the subject of confidentiality is narrow, the time range of confidentiality is not clear, too much emphasis on national interests in the rules with exceptions, etc. moreover, our legislation have not provided privilege of lawyer confidentiality, which is serious flaws in confidentiality system of the defense lawyers. These are a lot of puzzles and obstacles in the defense lawyer actual practice process that blocked defense lawyer to effectively achieve law duty and mission. It is become an urgent problem to improve the confidentiality system of the defense lawyers for criminal procedure. This article from lawyers'role as a start, have pointed out that"fully protection of the litigants'rights and interests"is the defense lawyers'core mission and responsibilities in criminal proceedings. Then I elaborated the basic content of confidentiality of defense lawyers, analyzing the status of our legislation, legislative defects, drawing lessons mature experience from abroad, and bringing up legislative proposal to improve the confidentiality system of the defense lawyers.This article is consisting of introduction, body and conclusion, and the body be divided into four chapters. The first chapter I introduced scholars'different viewpoints on the social role of defense lawyer, and then I demonstrated that defense lawyer is independent subject in the criminal procedure, rather than the interests'spokesman for the litigant, on the basis of comparison. The second chapter I introduced the elementary content of the professional confidentiality system of the defense lawyers, then point out the status of legislation and main defects. In China, although professional confidentiality for lawyers has been modified and improved by current legislation system, there still have many defects. The third chapter I focus on international norms, such as defense lawyer confidentiality legislation in Germany, France, the United States, Britain etc., and use the comparative approach to sum up the inspiration of legislation and maturity judicial practice which may be can be applied for us. The fourth chapter I stand up the current legal system in China, sum up the foreign mature experience, and point out proposals for confidentiality of defense lawyers, including detailed legislative norms obligation of confidentiality, license-free privileges for defense lawyers, etc., and the importance of the confidentiality system of defense lawyers.