Research On Independent Defense Of Lawyers

In the criminal proceedings,most scholars in China believe that lawyers have their own independent status in litigation activities.Not only independent of the prosecution and the court,but also independent of the prosecuted,which ensures that lawyers can help the accused to exercise their right of defense according to facts and laws,and play an active role in safeguarding the legal rights of the accused.But it is undeniable that at the same time,accompanied by the increasingly fierce conflict between the defense lawyer and the accused,which has endangered the trust relationship between the lawyer and the accused,as well as the interests of the accused and their main status when lawyers exercise their right of defense independently,Therefore,I analyses the problem of lawyer's independent defense in theory and practice,summarizes the past experience and the existing shortcomings,put forward personal humble opinions for the next reform and adjustment of lawyer's independent defense in China.This paper divides the research into four chapters.The first chapter ? analyze the meaning of lawyer's independent defense.I makes a theoretical analysis on the development and change of lawyer's professional orientation in our country's law.The lawyer's professional orientation in our law has gone through three stages: national legal worker,social legal worker and practitioner who provide legal services to the parties.The lawyer's national attribute has been weakened and the social attribute has been strengthened,they all emphasize that the lawyer should be independent from the accused,but the degree of independence is slowly weakening.Thirdly,lawyer's independent defense has the functions of safeguarding the lawful rights and interests of the accused,finding out the objective truth of the case and maintaining the balance of the litigation mode.The three theoretical foundations of lawyer's independent defense are the model of authority litigation,the particularity of criminal defense and the maximization of the legal interests of the accused.Chapter two ? compare the basic types of defense modes adopted by the major foreign countries.The defense model of Germany and Britain is the same,that is,the "lawyer independent defense model",which emphasizes the independent status of the lawyers.The defense mode of the United States is "the litigant-led defense mode",which emphasizes the litigant's control over the litigation process.By analyzing the characteristics of differentdefense modes in the main countries,this paper clarifies the similarities and differences between the two defense modes,and summarizes the practical characteristics and Enlightenments for improving our defense modes.Chapter three ? analyze the problems in the theory and practice of lawyer's independent defense in our country.I starts with the theory and points out the deep-seated problems existing in the model of power litigation,the status of the accused as the subject of litigation has been neglected,the wrong judgment of the lawyer on the best interests of the prosecuted,the lawyer have long misunderstood public law obligations.Finally,I summarizes various types of defense conflicts in practice,such as guilt and innocence,innocence and confession,caused by lawyer's independent defense.Chapter ?,regarding the issues above,I puts forward some specific measures to build a relatively independent defense model for lawyers in China.I presupposes some limitations for lawyers to defend independently in theory.It is emphasized that the lawyer should respect the subject identity of accused in the litigation,the judgement of the best interests of the accused,and definitude the private law obligation is the first task of the defense lawyer.Secondly,I sets some limits for lawyers.Lawyers should abide by the duty of loyalty,diligence in communication and effective defense when they engage in defense activities.Finally,I think we should improve the consultation and withdrawal mechanism between defense lawyers and defendants in view of a series of defense conflicts in court.