Research On The Prosecution Procedure Of Lawyer’s Perjury

The defender plays an important role in keeping the balance between the accuser and thedefense and protecting the legal interest of the accused. However, it would be unrealistic forthe defense lawyer to perform duties if their personal security could not be guaranteed duringthe criminal procedure. More seriously, the amendment of the article306of the criminal lawin1997which ruled the conducts of destroying evidences, fabricating evidences andimpairing evidences committed by the defenders and agent ad litem to be guilty let fearsbecome reality. In the judicial practice, more and more defenders were sent to jail because ofthe troublesome suspect of impairing testifying. Lawyers have always paid attention to thearticle306of the criminal law, some of them even strongly urge abolition of this article. Inthe opinion of the author of this paper, the solution is not about the abolition of the relevantarticle in the substantial law, but the existence of a due criminal procedure in which thedefenders would be free from the prosecution of injustice. The amendment of article42of thecriminal procedure law stipulates the jurisdiction of the long distance detection of theimpairing testifying for the first time, which will be of great significance in safeguarding thedefenders to fulfill their duties and being safe from revenge. This paper would take this as abreaking point and have relevant study focusing on the procedure of the perjury conducted bythe defenders.The first of this paper mainly described the background of stipulation of the impairingtestifying and its criminal procedure, which pointed out the necessity and importance inconstructing the perjury prosecution procedure of the lawyer. The relevant stipulation of thearticle306in the criminal law in1997caused controversy among the lawyers. Most of thescholars would study the stipulation in the angle of substantial law. nevertheless, the specialamendment of the jurisdiction of the long distance diction in the new criminal procedural lawbreaks new ground on the way of constructing the prosecution procedure of perjury of thelawyers. The author of this paper believes that the improvement of the relevant procedurewould be the fundamental solution of keeping those lawyers from the improper prosecution. Itis clear that the defenders belong to the disadvantaged in the lawsuit structure. Since whatthey confronts is the powerful state organs, they deserve being cared in the construction oflawsuit procedure. The construction of legitimate procedure of the perjury of lawyers is the needs of the protecting the defense right, avoid the interest and ensuring the judicial fairness.The second part of this paper summarizes the existing issues in the lawsuit procedure ofthe perjury of the lawyers. We could generally summarize the initiating mode of the perjuryof the lawyers based on the relevant cases, which exposes a series of issues in the lawsuitprocedure. First of all, the obscure of the stipulation of administrative sanction and penalty inthe lawsuit procedure causes those defenders who could only get administrative sanctionsuffering criminal prosecution finally. In the second place, basically the former investigativeagencies the defender faced with earlier would conduct the investigation, which infringed thedemand of avoiding relevant interest. Meanwhile, once the lawyer becomes a suspect ofperjury, he would be directly arrested by the accusing party without any form of review by theneutral judicial institutions. At last, in spite of the stipulation of the jurisdiction of longdistance diction of the perjury in the newly amendment of the criminal procedural law, it stilllacks the procedural sanctions once the investigative institutions violate it, which indulges theirregular investigation. The reasons causing those issues are not simple. In the aspect oflegislation, the article306of the criminal law is rather controversial, and the stipulation of thejurisdiction of the perjury in the article42of the criminal procedural law is not also perfect.During the criminal procedure, the prosecuting and defending parties have natural antagonismbecause of their vocational conflict. That atmosphere was intensified by the unreasonable keyperformance indication of the judicial authorities to a certain degree. The Bar association, asthe self-regulatory organization of the lawyers, failed to manage the lawyers and protect theirbenefits effectively because of its weak autonomy. finally, the concerns of the fall ofprofessional ethics of some lawyers combined with the other reasons to let the judicialauthorities dare to initiate emotional prosecutions on the “lonely child”.The third of this paper mainly covers how to construct the prosecuting procedure ofperjury. In the first place, we should improve the procedure of punishing lawyers, and bringthe power of punishment back to the bar association, meanwhile, the procedure of punishinglawyers should become the former procedure in initiating the prosecution of perjury.Secondly, only the public security organs could conduct the investigation on perjury. Thespecific procedure should set that the upper level of the original public security organ thedefender against should conduct the investigation or the upper level one should appoint otherpublic security organs to conduct the investigation. Meanwhile, it should be necessary entitlethe defender the right of jurisdiction objection. Thirdly, the judicial review system should be brought in the prosecution of perjury, and that power should be transferred to the neutraljudicial organ so that it would prevent the investigative organ arresting the defenders andconduct professional revenge at will. The last but not the least, we can adopt the invalidationof acts in those civil law countries to restrain and discipline the improper prosecution of thepower organs. Besides the establishment of the prosecuting procedure, it also needs theimprovement the article306of the criminal law, the immunity of defender and other relevantmeasures. By striving to constructing our country’s prosecuting procedure of perjury withthose efforts, it was hoped to protect the lawyers practicing the law in accordance with thelaw and free from the injustice prosecution.