The Duty Of Loyalty Of Defense Lawyers And Its Limits

With the reform of the defense system and the criminal justice system,the identity orientation of defense lawyers is also changing from "national legal workers" to "legal service personnel".The transformation of lawyer identity also means that the loyalty obligation is constantly highlighted and strengthened.The so-called loyalty obligation means that the defense lawyer puts the protection of the legitimate rights and interests of the defendant in the first place,respects the will of the defendant,and engages in defense activities to protect the rights and interests of the defendant to the greatest extent.But it is not a complete and absolute loyalty obligation,which will also be limited by the negative real obligation,that is,it undertakes to safeguard the national and social public interests.The research on the limit and boundary of defense lawyers’ loyalty obligation plays a guiding role in the practice of defense lawyers’ practice behavior,promotes defense lawyers to perform their duties of loyalty obligation,resolves the contradiction with the defendant,and avoids falling into risk because of engaging in defense activities.The first part is an overview of the loyalty obligation of defense lawyers,which mainly introduces the meaning of the loyalty obligation of defense lawyers,the relationship between confidentiality obligation and public welfare obligation,and the basis of the loyalty obligation of defense lawyers,Finally,it analyzes the institutional provisions of the duty of loyalty in relevant foreign countries and Its Enlightenment to our country.The second part is the realistic dilemma of defense lawyers’ Loyalty Obligations,aiming at the performance of defense lawyers’ Loyalty Obligations in the pre-trial stage,the deficiencies of China’s confidentiality obligations,the long-term lack of lawyers’ right to refuse to testify and the guarantee mechanism of loyalty obligations.The third part is the realization path for defense lawyers to fulfill their loyalty obligations.In view of the existing problems in China,it puts forward solutions to strengthen defense lawyers to fulfill their loyalty obligations during investigation,review and prosecution,improve defense lawyers’ confidentiality obligations and their exceptions,clearly stipulate defense lawyers’ right to refuse to testify,and improve the relevant guarantee mechanism of defense lawyers’ loyalty obligations.The fourth part is that the boundary of defense lawyer’s loyalty obligation is negative real obligation.It mainly introduces the real connotation of negative real obligation and the basis as the boundary of loyalty obligation.Secondly,it explains the relationship between negative real obligation and public welfare obligation,as well as the performance and resolution of the conflict between defense lawyer’s loyalty obligation and negative real obligation.