Thoughts Of The Article306of Criminal Law

According to the provision of Article306of the Criminal Law, the defender or the agentad litem destroying evidence, fabricating evidence or obstructing the witnessing is one of therevised new charges of Criminal Law in1997. Its purpose is to regulate the lawyer’sprofessional ACTS, and to maintain the normal order of justice. However, since the articlewas established, it has been controversial. Around the problem of whether the article shouldbe abolished or not, it gradually forms two schools between theorists and practice experts.Article306of the Criminal Law is discussed through the following five parts:The first part is the concept of this crime and the difference with the related charges. Inthis part, firstly the definition of this crime is defined. Secondly, respectively compared withthe crime of concealing the murder and perjury, it is thought much too different from othertwo kinds of crime whether in crime subject, object, objective aspect of the crime or the time.The second part is the necessity of the reason for this crime into the punishment. Sincethis crime was one of the revised new charges of Criminal Law of1997, based on the analysisof our country judicial status during the revised charge of Criminal Law of1997, we canconclude that the main reason for the punishment of this crime in the system for therealization the coordination between laws, on the other hand, it also comes from the practicalneeds against the lawyers’ crime.The third part is the elements of this crime constitutes. The first is the subject of crime.The author thinks that this subject of crime can only be criminal proceedings of the defendersand agents ad litem, for the vast majority of whom are lawyers. The second is the subjectiveaspect of crime, through the contrast of the direct intent and indirect intent on the will factorsand the cognition factors; the author thinks that this is only for direct intent. What’s more? It’sthe object of crime. The theorists also have a different point of view, focusing on theinfringement object simple or complicated. The author thinks that the object is a complicatedobject. The last but not the least, it is the objective aspects of crime. There are three kinds ofacts of the crime, which destroys or forges the evidence, helps the parties destroy or forge theevidence, and threats or induces the witness against fact change testimony or give falsetestimony. In the action of destroying or forging evidence, the author thinks that the evidencedestroyed is not limited to material evidence, and eight kinds of evidence can become theobject of this crime. Concealing evidence and witnesses, which make evidence unusable, especially the key evidence, and altering the evidence which leads to the loss of evidencevalue belong to fabricate evidence. In the actions of helping the parties of destruction, forgery,the author thinks that not only include tangible help, but also intangible help which needsgeneral understanding. in the actions of threatening or inducing the witness testimony oragainst the fact change of perjury, the author thinks that threat not only including the threat ofviolence, but also nonviolent threats, and temptation not only includes material temptation,but also mental lure, which needs the strict limits for explanation. In addition, this onlyhappens in criminal lawsuit which belongs to behavior crime.The fourth part is whether to abolish the Article306and the author’s thoughts. Scholarswho think it should be kept consider individual lawyers do exist in violation of the provisionsof laws, in violation of professional ethics, as a defender and agent ad litem process to helpthe parties destroy or forgery evidence at present in the judicial practice. A lawyer who is theprofessional personnel engaged in legal services will bear greater responsibility more thanordinary and stricter constraints. Scholars who advocates the abolition believe that it increasesthe risk of a lawyer, which makes the business on thin ice, contend punishment encourageprofessional revenge, and go against the accused and the defendant of the balance of power. Alawyer for a single sin is unfair. The author’s thoughts.This can be contained Article307ofthe criminal law, the provisions of repeat. The establishment of this crime and the character ofmodest and restrain of criminal law run in the opposite direction. The author also thought thatshould abolish this crime, and for article307of the criminal law to regulate and punish thelegal act.The fifth part is the way to perfect this crime. Combine Article307and Article306ofthe criminal law, and perfect combination; Limit restrictive judicial interpretation for Article306of the criminal law;...