Research On The Construction Of Defense Lawyer’s Privilege To Testify

The defense lawyer’s privilege to testify is one of the more important privileges in professional relationships.Specifically,it refers to the fact that defense lawyers,based on their professional characteristics,inevitably learn about situations and information related to the client and the case during the process of providing professional services to the client.Unless otherwise stipulated by law,defense lawyers are not allowed to disclose or disclose such situations and information,And has the right to be exempt from testifying to judicial authorities regarding the situation and information.Due to its rich definition,the privilege is closely related to many concepts.It is very similar to the professional spirit embodied in lawyers’ professional ethics,and has overlapping parts in the definition of lawyers’ confidentiality obligations.At the same time,"the right to refuse testimony","the privilege to refuse testimony",and "the right to refuse testimony" are equivalent to the translation terms of relevant foreign regulations.Moreover,by analyzing the definition of this privilege to testify,it can be found that it has both rights and obligations,making it a relatively special existence among the numerous litigation rights of defense lawyers.The richness of connotation and the particularity of nature are not sufficient to support the necessity of establishing a separate relevant system in China.The value of the system itself and the shortcomings of existing regulations in China are the fundamental reasons for the existence of the system of privilege to testify as a defense lawyer.From the perspective of the value and significance of system construction,it is the primary role that the existence of the system can play to ensure the realization of the defendant’s right to defense.Giving defense lawyers the privilege to testify can better promote the communication between lawyers and clients on the content of the case,and lawyers can also provide the most effective defense for clients,reflecting the people-oriented system spirit.Secondly,the orderly development of the lawyer industry also requires the escort of this system.The privilege system not only requires defense lawyers to strictly perform their confidentiality obligations to ensure that they do not actively disclose the client and the situation of the case,but also grants lawyers the privilege of exempting them from testifying to the judicial authorities about relevant information,avoiding lawyers’ passive disclosure of relevant information due to public power requirements,fundamentally safeguarding the trust foundation between defense lawyers and clients,and ensuring that litigation cooperation between the two parties can proceed more smoothly,It greatly facilitates the development of lawyer practice activities and is also beneficial to improving the lawyer’s practice environment.Moreover,there is an urgent need to build corresponding systems to remedy the shortcomings exposed by relevant regulations in China.When defense lawyers want to obtain professional protection through the privilege of testifying system,they search for relevant legal norms but find precise and mandatory legal provisions as support.The legal basis is very weak,and there are few detailed provisions related to the scope of the subject,object content,exceptions,etc.of the privilege of testifying,making it difficult to cobble together a complete defense lawyer privilege of testifying system,It is easy to cause the system to fall into a dilemma where it cannot be relied on.Accordingly,the necessity of constructing the system of privilege to testify for defense lawyers is self-evident.Throughout the relevant provisions of foreign countries,both Anglo American and civil law countries have systematically elaborated on the system of immunity.Not only does it have a clear scope of direction in terms of the subject and object of the privilege,but it also has detailed regulations on the starting and ending times of the exercise of the privilege,as well as exceptions,providing reference experience for the construction of corresponding systems in China.Considering the working characteristics of the lawyer profession and the current situation of social development in China,as well as the two types of legal relationships involved in the privilege and the special nature of exemption from testimony,the main body of the privilege of defense lawyers to testify in China should be defense lawyers and auxiliary personnel involved in the handling of cases,and personnel such as on-duty lawyers should also be included to ensure the logical rigor of the system;In terms of the object,it is necessary to unify and standardize the wording used in the expression based on clarifying that the object is the relevant information held by the defense lawyer in the process of providing legal services,so as to make the system more specific and systematic;The starting and ending time of the privilege to testify should also be more lenient,including the consultation stage between the client and the defense lawyer before establishing a formal entrustment relationship,and extended to the end of the entrustment relationship;Finally,enriching the types of exceptions to the privilege to testify is also important in the construction of the system.In addition to preparing or committing serious crimes and proving the innocence of the accused,the types of exceptions can be flexibly expanded by drawing on the provisions of other countries.Therefore,through the specific implementation of these aspects of the system design,the framework of China’s defense lawyer testimony privilege system can be basically outlined.