On Lawyer's Perjury

In 1997, the Criminal Law revision was an important milestone in criminal judicature activity in our country, but some questions have been exposed in judicial practice that exists in legislation recently. Among these questions, the crime of defender or legal representative's destroying evidence or forging evidence or impairing to bear witness has been paid high attention by the judicial theorists and judicial practice, many lawyers have been jailed for issues related to evidence unjustifiably and for unknown reasons. It is especially opposed by law society. Based on those above, in this article, the author is going to expound the application of Article 306 and legislative serious malpractices, thereinafter, making some rationality propositions in the consummation of the legislation of this crime in the way of substantive criminal law and procedural criminal law and combining our peculiar national condition. This passage altogether divides into five parts:Chapter 1, from the beginning of the legislation background that the crime of defender or legal representative's destroying evidence or forging evidence or impairing to bear witness in the process of revising 1997 Criminal Law, the author explains the origin of the legislation and the determination of the accusation of it. In the latter part, present judicature situation is promulgated in our country through analyzing certain data and case. Serious malpractice in the legislation has been further promulgated through the quantity change of recognizing this crime and the climbing proportion in the correlation case.Chapter 2, this chapter mainly compares and analyzes the definitions of constitutive requirements of this guilty of the internal scholars who hold the different points of view and then gives reconsiderations and reappraisals. First, the object of the crime is complex, which disturbs the criminal procedure of the judicial departments and destroys our defending system; Second, the subject of the crime should be special natural person who are the defenders or legal representatives and the author gives comprehensive comments on the "defenders" and "legal representatives" according to the present Criminal Procedure Law; Third, the author agrees the theories from the basic localization of the criminal society that the subjective aspect can only be intentional. Fourth, the thesis elaborates judicature recognizes about objective aspect of this crime combining different scholarly views from the academic circles: In one hand, the whole process of "in criminal procedure" includes placing a criminal case on file, investigation and prosecution, trial and execution. In the other hand, the author analyzes the objective aspect behavior of this crime and believes that destroying evidence is not covering concealing evidence and fabricating evidence should give expanding understanding that contains altering evidence, promulgate non-determinism to recognize caused by non-definitions of limitation of this crime behavior through analyzing conceptions related "threat", "temp", especially "temp", owing to opinions vary, many defenders and legal representatives are suspected of being involved into the crime of impairing evidence which also originating from here. The author regards as here "temp" can't misunderstand the leading questions, but bride witness change testimony by violating the fact or give false proofs by the way of material benefits such as money or nonmaterial benefits such as female's charms, giving honor or promising jobs. If the defender only prompts and guides the witness in order to help him to recall the concrete fact of the case and doesn't carry out other threat or promise some benefits method, which is also inadvisable to be punished for this crime even though some certain abnormal circumstances are existence.Chapter 3, the author analyzes several problems easy to confound in the judicial practice in applying the article: One is to limit the crime & non-crime boundary of this crime; Two is to promulgate boundary between this crime and the approximate through compared this crime with the crime of perjury and the crime of impairing evidence and the crime of helping to destroy or forge evidence and to point out the solution of solving the coincidence of law articles.Chapter 4, the thesis proposes that because the number of the crime of lawyer's perjury increases fast as well as the lawyer appearing in court leads large decline present, which has caused the theorists and the judicial practical struggle to save or abolish the crime. The author analyzes some scholars' viewpoints and points out that we should abolish the crime.Chapter 5, serious malpractice has been further promulgated from the legislation value, the legislation technology and the judicial practice; therefore, in order to revise the legislation, the thesis provides more rationality background of the crime. Legislation value analysis, the establishment of this crime violates the legislative principle and is harm to the formation of the litigable pattern of the balance between accusers, defenders and judges; Legislation technology analysis, in one part, making a general observation of most countries in the world, defenders and representatives are not the peculiar subject of the crime of impairing evidence in the legislation examples in vast majority criminal law. Therefore, our country's provisions of the criminal law are not inconsistent with the current practice through out the world. In the other part, the crime of lawyer's perjury is provided independently in legislation, which makes the provisions more alternately and overlapped. The legislation not only doesn't make the relative provisions more clearly to discriminate, but also contrary, the overlapped content and the unclear boundary lead to define and handle a criminal offence more difficult and confusion, even to cause confusion between the crime and breaking the law or violating the discipline. Judicial analysis, the author proposes to repeal this provision for discriminating against the legal profession, deteriorating the relations between the accusers and defenders, destructing the legal system balance, blocking the development of lawyer cause.Chapter 6, this chapter puts forward a proposal to perfect the legislation, which is also the nucleus of the thesis. We have to choose the legislation according with our national condition in the orientation of value: In the guiding ideology, we need to know that the development of lawyer profession in our country's democratic politics and the course of legal system is a long and arduous process, there is a big gap between the objective reality and the position and affection the lawyers ought to have. Therefore, we should adhere to the modest and restrained principle of criminal law in regulating the behavior of lawyer profession, stand on the angle of respecting, protecting and expanding the liberty and right of citizen and on the angle of realizing judicial fairness and accelerating the progress of legal system. We should show utmost solicitude for the development of lawyer profession and entrust rights carry corresponding defensible responsibilities to the lawyers in the light of the character of lawyer profession. In one hand, the thesis suggests to abolish Article 306 and integrate the Article 306 with the neighborly article from the substantive criminal law angle and set up some guaranty regulations from the procedural criminal law angle. For example, the author considers implementing the principle of immunity of lawyer's speech on the court according to the new Lawyers' Law and the lawyer punishment mechanism as the prepositive procedure in investigating the criminal responsibility. Moreover, the author emphasizes the witness' appearance in court which may contain the development tendency of the crime of impairing evidence and points out that it is necessary to set up the special judicial handling system. By above-mentioned perfect legislation measure, we hope that the realization of the lawsuit goal of well fair with efficiency and the advancement of the democratic legalistic government in our country.