Several Issues On Crimes Concerning Defense Lawyer In China

With the acceleration of the process of social construction of the rule of law,China has paid more attention to the protection of criminal suspects and defendants’ rights,and the judge-led trial system has begun to shift to the anti-mode system of litigation.In the context of such an era,the status and importance of defense lawyer is self-evident.However,in our judicial practice,it did not work out the way it should be.According to incomplete statistics of the National Bar Association,in 2010,Chinese lawyers per capita handling of criminal cases is less than three.I believe that these two reasons should be responsible for lawyer’s negative attitude and the depression of the field of criminal defense.First of all,there exist problems in part of the provisions of China’s Criminal Law that involve defense lawyers.Such as Article 306 of Criminal Law,"lawyer perjury".Both clarity and the legislative technology of this provision worth considering.As to Article 310 of the Criminal Law,"crime of harboring criminal",the description like "help","bear false testimony" not only has the problem of ambiguity,but also conflict with the occupational characteristics of defense lawyers.And crimes like disclosing state secrets and divulging information that should not be disclosed etc.,the legislative problems and improper application of these provisions make the defense lawyers always facing the risk of being prosecuted when they acting cases,under these circumstances,it is difficult for them to do due diligence,and some even directly refuse criminal cases,which lead to the shrink of the criminal defense field.Second,China lacks a system of criminal exemption for lawyers.Without the protection of criminal immunity,like speech immunity and provide false evidence immunity etc.,defense lawyers have to take the risks that come from social,judicial and many other aspects throughout the proceedings,a little careless might lead to penalty.In this case,they will inevitably practice negative and avoid the field of criminal defense.These two points above are also the primary cause of the formation of the issues on crimes concerning defense lawyers,and these two points are where this article start from as well.Through the analysis and correction of the legislative problems and the wrongful application of the provisions concerning defense lawyers in the Criminal Law,and the argumentation and clarification of the importance and the necessity of the construction of lawyer’s criminal immunity,the author hopes to achieve the purpose of resolving the issues on crimes concerning defense lawyers and revitalize the field of criminal defense in our country.