The Causes And Prevention Of Criminal Defense Lawyers' Practice Risks

Restoring the lawyer system has been more than 30 years since 1979.Although the lawyer's practical environment has changed a lot,the defense lawyers are still facing a great risk of practice in current judicial practice.As a result of the existence of a large number of risks of practice,the defense lawyers do not want or dare to participate in criminal defense.So the legitimate rights and interests or human rights of criminal suspects or defendants can not be maintained or protected.Although the provisions of new criminal procedure law concerning the right to defense on counsels have made significant progress,these provisions can not completely eliminate the risk.We must take other steps to reduce the practical risk of defense lawyer.Firstly,the thesis distinguishes the practice of the risk of non normal from normal practice risk,makes a conclusion that Chinese practice risk is a typical abnormal practice risk,and introduces the characteristics and contents of it.The thesis focuses on analyzing the problem of higher practice risk,mainly obtains the various charges of criminal liability ratio by collecting data over the years,extracts that in recent years the biggest threats to the criminal defense lawyer are lawyer perjury crime and obstruction of witnessing,and gets the reasons of legislation and system on analyzing the representative of the perjury lawyer,obstruction of witnessing.The reasons conclude: the legislative defect of the criminal law in Article 306,the lack of lawyers' privilege,the lack of overall withdrawal system,administrative prepositional procedures and the investigative power of judicial review.Through the understanding of the legislative and institutional level,we can reduce the risk of practice of China's defense lawyer.By drawing on the measures in the civil law and common law countries on reducing the practice risk of defense lawyers,this thesis explores and analyzes the legal norms which are suitable for China's lawyer system and then puts forward some suggestions on how to reduce the risk of practicing lawyer: integrating the provisions of 306 and 307 of the criminal law and canceling the provisions of the special subject of lawyer;granting defense attorney privileges,perfecting the rules of speech exemption and conservative secret occupation;improving the overall system and setting the right of avoidance of investigation jurisdiction and reforming criminal appraisal system;setting up the administrative procedure of judicial administrative organs;establishing the judicial review on the investigation power.And the right of control and examination shall be shared by the court and the procuratorate commonly.