A Study On The Conflict Of Conflict Between The Prosecutor And The Lawyer

Defense conflicts between a defendant and his (her) attorney on the defense opinions is very common in the proceeding of China. In recent years, a number of cases about defense conflicts known to the public has drawn many discussions and research from practitioners and theorists. Generally, lawyers believed that they may do the defending things independently and beyond the will of their clients, professors of Law, however, argued not and expressed their criticism. The issue of the defense conflicts this paper studied is the confliction between a defendants and his lawyer, which is throughout the whole criminal proceedings and all kinds of defense. We defined the’defense conflicts’as the differences of opinion between the defendants and his lawyers when they find there are many ways to protect the defendants’ proceeding rights, but failed to reach a agreement. Defend conflict embodies the fight of the defense initiative between the defendants and his lawyers, which contains the conflict of the rights and interests for the litigation participants. Frequent conflict of defense caused great trouble to our judicial operation,including that the interest of litigation of defendants suffered serious violation, the wasting of judicial resources and the destruction of the legal order, even seriously hindered the healthy development of the legal profession. The legal cause is that there don’t make a clear distinction between the elevant laws and regulations on defense initiative,while endowing independent defence of judicial duties to defense lawyers. The theory of Lawyer independent defense originated from the civil law countries are the theoretical source to our country. The theory is that the defense lawyer should have independent legal status and personality, and should be based on facts and legal defense independently. This theory has theoretical basis in many aspects, and it conforms to the interests of the principal mostly in terms of defense effect.’Person Centred" in comparative law gave us a good reference to solve the conflicts of defense. Which consider that the parties should be the leader of the defense behavior, whose will and the decision should be fully respected. Compare to the two theories, we can see that the produce of the two theories is relevanted to the country’s litigation culture and the purpose of the criminal proceedings and other factors. Reflecting on the absolutely independent defense theory in our country, which not only has the natural inner contradictions to criminal procedure structure model,but also misreads of the dual nature of the legal profession,and goes againstis the legal advantage of the the accused. Dealing with conflicts of our defense, Not only we have to consider the main professional ethics of lawyers is the contacts between the defendant and his lawyers,but also the procedural system is led by the customers. the most important thing is that we must realize to protect the litigious rights of the accused person, especially to ensure its procedural subject position, which is the most key factor to solve the problem of defense conflict in our country.To deal with conflicts of our defense, The theory Advocates that when the defense lawyer clashed with the defendant in the defense, what should do is that fully consider the defendant’s core interests and respect the free will. In terms of defense behavior, which are needed to distinguish is that defense position, defense strategy, legal issues, the legal issues, etc. At the same time we need to guarantee the communication and the consultation mechanism of defense opinion between the defense lawyer and client. And it is necessary to establish agreed system of defense initiative between the two sides and the prudent exit mechanism of defense clientage.