The Regulation Of The Out-of-court Statements Of Lawyers In China’s Criminal Justice

Nowadays in China, it is a common observation that lawyers make statements out of court in many criminal cases, and such phenomenon is even becoming a trend. In essence, the out-of-court statements of lawyers is kind of a well-planned lawsuit strategy. Behind the strategy, there buries some much deeper level questions such as the formalization of trial and the alienation of criminal jurisdiction. In consideration of the particularity of criminal proceedings, the lack of necessary regulation on the out-of-court speech of lawyers would be very likely to result in no principles and bottom-line for confrontation between the accusers and accused out of court, which would violate the legitimate rights and interests of parties to case and other lawsuit participants, as well as endanger the authenticity, credibility and public interests. The vivid cases have demonstrated that, under the comparatively special social background and judicial system in current China, the harm of out-of-court statements of lawyers has uniqueness and even could not be wiped off through normal judicial relief.Based on the confidentiality obligations, the duty of prudence as participants in the proceedings and the moral responsibility of the legal profession community, rational regulation of the out-of-court statements of lawyers is the current states of criminal justice practice. But due to differences in legal environment and the trial mode, the specific scope and the manner need to regulate is different. At present, China’s legislative body, judicial-administrative organs, industry autonomy organization do a bad job on the out-of-court statements of lawyers. On the one hand, the provisions of "Attorney Law" and "the lawyer’s practice code of conduct" are too general; On the other hand, the criminal law amendment (9) stipulate the out-of-court statements of lawyers as criminal behavior directly. The construction of the out-of-court statements of lawyers is urgently required.In this article, the author will start from the lawyer’s professional positioning, analysis the lawyer client rights and interests of the defenders, officer of the authority of law, social orientation of the seeker of justice. Then the author will dissect the out-of-court statements of lawyers from the perspective of connotation, classification and nature. And ultimately, the out-of-court statements of lawyers is kind of strategy. The basic logic is that lawyers choose the most likely to cause public concern and most likely to effect factors of court targeted according to the specific analysis and research, and announce the news through the network and the media channels, then sparked public outrage and emotions, create a favorable external environment, and make it into the court proceedings, which make it become the external factors affecting the court judge, to win the case, or even change the court judge.Secondly, through the empirical analysis, the author will conclude the general harm of the out-of-court statements of lawyers, and point out that the out-of-court statements of lawyers may damage the rights and interests of litigants and other litigant parties,and endanger the fair trial. Based on the special national conditions of our country, the damages caused by the out-of-court statements of lawyers cannot be eliminated by lawsuit remedies. In addition, the author will also analyze the other legal issues might be caused by the out-of-court statements of lawyers.And then, the author will excavate the root cause of the out-of-court statements of lawyers, points out the formalization of trial and the alienation of criminal jurisdiction behind. At the same time, the author will summarize the confidentiality obligations, the duty of prudence as participants in the proceedings and the moral responsibility of the legal profession community.And then, the author will also analyze our country existing rules, points out the shortage. At the same time, the author will compare two basic modes of the out-of-court statements of lawyers.Finally, the author will come up with the specific specification of the out-of-court statements of lawyers according to the experience of the outside and the reality in our country. At the same time, the author will points out that the supporting system required in the implementation of the out-of-court statements of lawyers.