Research Of Immunity For Defense Of Lawyer

The criminal immunity of defense lawyers refers to the protection for both thesecurity of defense lawyers and the accused, furthermore for the constraints on statepower. In the course of criminal proceedings, three parties that are the prosecution, thedefense and the inquisitor constitute criminal litigation structure. Thereinto, the trialthat is the court is in a neutral position, whose duty is to make legal and equitablejustice according to the laws, ordinance and the testimony. The inquisitor is theprosecutors, whose mission is to sue the defense and provide evidences to make thejudge convince the defense has committed their alleged crimes in court. In thistripartite litigation structure, judge cannot make a fair judgment, unless the court isneutral, meanwhile the prosecution and the defense could achieve a basic balance.However, it is unequal innately between the prosecution and the defense due to theformer is on behalf of the state power while the defense is on behalf of private rights,so the prosecution in a strong status. To balance this situation to be balance, thelawyer system came into being. Once lawyers involved in the criminal proceedings,they are bound to become the "enemy" of the prosecution, which means they stand onthe opposite side of the state power. So to be attacked and to be revenged is inevitable,the role of lawyers is greatly reduced and not conducive to the balance betweenprosecution and the defense. Therefore, it is necessary to endow the defense immunityrights to criminal defense to make the defense lawyers do not hesitate to fulfill theirown defense function in the proxy cases and be able to fully play its role to defend thelegitimate rights of criminal suspects or defendants. China currently does not clearlyestablish that right to make the prosecution and the defense tends to balance. Suchprovisions can only be found in some scattered ordinance, and some of which arecontradictory and talk in generalities, so many are mere formality and do not have astrong operability. Because of the special political institutions and legal and culturaltraditions in China, the defense lawyers are not widely recognized by the society andit is difficult to play its due role in the criminal defense. Therefore, it is necessary toestablish immunity rights for the defense lawyers and protect the defense lawyers inthe defense of any claim. The defense lawyer shall fully play his role and vindicatethe legitimate rights of criminal suspects and the defendants, meanwhile limit statepower, so balance between the structure of the prosecution and defense litigation canbe achieved.