The Supreme People's Procuratorate released the first batch of typical cases to protect lawyers' right to practice Last year, more than 1200 cases of infringement of lawyers' right to practice were verified
On February 5, the Supreme People's Procuratorate released the first batch of typical cases to safeguard lawyers' right to practice, directly facing the difficulties and pain points in the current practice of defense lawyers, aiming to further strengthen procuratorial supervision and effectively safeguard lawyers' right to practice.
There are 5 typical cases released this time, including the case of lawyer Lu Moumou applying for the supervision of the right to know, the case of lawyer Wang Moumou applying for the supervision of the right to meet, the case of lawyer Chen Moumou applying for the supervision of the right to meet, the case of lawyer Zhu Moumou applying for the assistance of a paralegal to meet and supervise, and the case of lawyer Hou Moumou applying for the supervision of the right to express his opinions.
Xu Xiangchun, Director of the Tenth Procuratorate Office of the Supreme People's Procuratorate, introduced that the five typical cases in this batch involve a wide range of types, involving public security, prosecutors, courts and other case handling subjects, covering the right to meet, the right to know and other lawyer practice rights, including investigation, prosecution, trial and other proceedings. The release of the five cases has a high guiding value and normative significance for the political and legal authorities at all levels to exercise their rights in a standardized manner, guarantee lawyers' practice in accordance with the law, and timely carry out relief for obstruction of rights.
According to statistics, from January to December 2020, the procuratorial organs nationwide reviewed and handled more than 2000 complaints of infringement of lawyers' right to practice. Among them, more than 1600 have been completed. From the perspective of case acceptance, there are more than 600 cases reflecting the "restriction on lawyers' meeting correspondence"; There are more than 300 pieces reflecting "documents not delivered or notification of transfer"; There are more than 200 pieces reflecting that "lawyers are not allowed to consult, extract and copy files". In handling cases, various localities performed their supervisory functions according to law, and verified more than 1200 cases of infringement of lawyers' right to practice. Among the verified cases, more than 700 were notified to be corrected and 500 procuratorial recommendations were issued.
Xu Xiangchun introduced that since 2019, the procuratorial organs throughout the country have continued to carry out special supervision work to protect lawyers' right to practice, conscientiously performed their duties, and supervised and corrected a number of lawyers' complaints according to law, which has achieved good results in handling cases. The five typical cases selected from them are the first batch of typical cases issued by the procuratorial organ on the protection of lawyers' right to practice, which embodies the effectiveness of the special supervision work on the protection of lawyers' right to practice.
It is reported that the ongoing evaluation of civilized reception rooms of procuratorial organs across the country has taken the protection of lawyers' right to practice as an important assessment content. If no lawyer "green channel" is set up, no special case handling team is set up or there is a special prosecutor, a one vote veto will be implemented, and they are not allowed to participate in the evaluation and declaration; Those who have conscientiously handled the complaint cases of infringement of lawyers' right to practice and achieved good results shall be given priority as the object of evaluation and commendation.
Typical cases of national procuratorial organs safeguarding lawyers' right to practice
Case 1: Lawyer Lu Moumou's Application for Supervision of the Right to Know
Keywords
Major procedural decisions: supervision of lawyers' right to know cases
[Main point]
According to the provisions of the Criminal Procedure Law and relevant judicial interpretations, the case handling organ shall timely inform the defense lawyer of major procedural decisions according to law. If the case handling organ fails to perform its obligation to inform according to law and infringes upon the lawyer's right to practice, the procuratorial organ shall supervise according to law. For major procedural decisions in the litigation process, the case handling organ can effectively guarantee the lawyer's right to know by means of informatization, SMS, online self-help inquiry and other forms.
Basic Case
On November 20, 2019, Dai was detained by an investigation organ for being suspected of provoking trouble. On the same day, Lu Moumou, a lawyer of a law firm, accepted the entrustment of the family of the suspect Dai Moumou to act as the defender of Dai Moumou in the case of provocation and trouble making by Dai Moumou and others. On November 25, 2019, Mr. Lu, a lawyer, delivered the lawyer's practice certificate, law firm certificate, power of attorney and other relevant materials to the investigation organ. On November 29, 2019, Dai was arrested with the approval of a municipal procuratorate. On December 16, 2019, the investigation organ transferred the case to the procuratorate of a city for investigation and prosecution, but did not inform Dai's lawyer Lu of the transfer of the case. On December 20, 2019, a city procuratorate decided to obtain a guarantor pending trial for Dai.
[Supervision by procuratorial organs]
Acceptance of clues On December 25, 2019, the lawyer Lu Moumou complained to a city procuratorate that a city procuratorate accepted the case on the same day because an investigation organ failed to inform it of the information about the transfer of the case for review and prosecution in accordance with the law, preventing it from exercising its litigation rights in accordance with the law.
Investigate and verify that the procuratorate of a city has started the investigation procedure on the case, listen to the opinions of the lawyer Lu and the defenders of the co suspects, ask the investigators and consult the relevant materials of the case. In addition, the procuratorate of a city conducted a special investigation on the cases transferred to the procuratorate with defense lawyers since December 2019, and three lawyers also reported that their right to know was blocked. After investigation and verification, the information reflected by the above lawyers is true.
Supervision Opinions A municipal procuratorate believes that the investigation organ failed to inform the defense lawyer of the important procedural information of transfer for review and prosecution in the process of handling criminal cases according to law, which violates Article 162 of the Criminal Procedure Law of the People's Republic of China, Article 289 of the Provisions on the Procedure of Public Security Organs in Handling Criminal Cases (revised in 2020), the Supreme People's Court The relevant provisions of Paragraph 2 of Article 6 and Article 37 of the Provisions of the Supreme People's Procuratorate, the Ministry of Public Security, the Ministry of National Security and the Ministry of Justice on the Protection of Lawyers' Right to Practice in accordance with the Law concerning "the case handling organ shall notify defense lawyers of major procedural information in litigation" have violated lawyers' right to know. On January 19, 2020, the procuratorate of a city issued a "Notice on Correcting Violations" for similar cases to the investigation organ, requiring the investigation organ to correct and rectify the illegal acts that have repeatedly hindered lawyers from exercising their litigation rights according to law.
Supervision effect On February 1, 2020, the investigation organ replied in writing that it would strengthen the education and training of the police handling cases, and at the same time, it required all the case handling units to inform the defense lawyers in writing of the major procedural decisions of the cases in a timely manner, so as to further standardize the handling of cases and prevent the recurrence of such problems. The procuratorate of a city continued to follow up and supervise the rectification of the investigation organ, and found that there were still cases where the transfer information of individual cases was not informed. The survey found that in addition to being affected by the COVID-19 epidemic, the main reason was that the awareness of safeguarding lawyers' rights to practice and safeguarding the legal rights of the parties was not strong. To this end, a municipal procuratorate led the joint formulation of the Interim Measures for Protecting Lawyers' Right to Know on April 30, 2020, together with the Municipal Public Security Bureau and the Municipal Judicial Bureau, which specified in detail the key links, channels, ways, and information platform applications of the connection between the case handling department and lawyers. On the same day, the municipal court, the municipal procuratorate, the municipal public security bureau, and the municipal judicial bureau jointly formulated the Measures for the Joint Handling of Safeguarding Lawyers' Practicing Rights (for Trial Implementation) to improve the efficiency of handling cases of obstruction of rights. During the consultation, the investigation organ actively explored new functions in the "comprehensive application system of law enforcement and case handling by investigation organs". After the defense lawyer's information is input into the system in a standardized way, the system will automatically send the information of the criminal suspect's coercive measures, detention location, case transfer and other information to the defense lawyer in the investigation stage by SMS, effectively guaranteeing the lawyer's right to know.
【 Guiding significance 】
1. The procuratorial organ shall carry out legal supervision and correct according to law the problems such as the failure of the case handling organ to inform the defender of major procedural decisions in criminal proceedings. In accordance with the Criminal Procedure Law of the People's Republic of China, the Rules of Criminal Procedure of the People's Procuratorate, the Provisions on the Protection of Lawyers' Right to Practice in accordance with the Law of the Supreme People's Court, the Supreme People's Procuratorate, the Ministry of Public Security, the Ministry of National Security, the Ministry of Justice and other provisions, in criminal proceedings, the lawyer believes that the case handling organ and its staff did not fulfill the obligation to inform the lawyer in accordance with the law, Anyone who obstructs lawyers from exercising their litigation rights according to law may make a complaint or charge to the People's Procuratorate. The People's Procuratorate shall examine the case within ten days after accepting it. If the case is true, it shall notify the relevant organs to make corrections. If the People's Procuratorate discovers any act that obstructs lawyers from exercising their litigation rights according to law in the course of handling a case, it shall put forward suggestions for correction according to law and in a timely manner.
2. In handling cases, procuratorial organs should be good at finding clues to cases that hinder lawyers from exercising their rights to practice according to law, strengthen supervision over similar cases, and deepen the effectiveness of handling cases. Actively investigate the case clues that hinder lawyers from exercising their right to practice in accordance with the law through informal discussions, visits, special inspections and other forms. Establish a feedback mechanism for the transfer of internal clues, and handle the case clues found in the process of procuratorial performance in a timely manner in accordance with the law. Take case handling as a breakthrough, sort out cases, put forward corrective suggestions on common problems, and continue to follow up and supervise according to law, urge and assist in the implementation of rectification, and enhance the effectiveness of supervision.
3. To protect the lawyer's right to practice, we should strive for support from all parties, innovate supervision methods, and optimize the supervision effect. In the case of infringement of the lawyer's right to know, in addition to the reasons such as the irregular law enforcement of the case handling organ itself and the weak legal awareness of the case handling personnel, there are also problems such as the poor communication between the lawyer and the case handling personnel, and the untimely connection of information. The procuratorial organ should pay attention to strengthening communication and coordination with the public security, courts and judicial administrative organs. For problems that need to be solved with the cooperation of multiple parties, we should take the lead in discussing and studying, and jointly formulate a series of normative documents to strengthen the prevention from the system. Be good at using intelligent means, strengthen information construction, solve problems such as poor information communication, efficiently and timely protect lawyers' right to know, and strive to achieve good case handling results.
[Relevant regulations]
Article 162 of the Criminal Procedure Law of the People's Republic of China
Article 57 of the Rules of Criminal Procedure of the People's Procuratorate
Articles 6, 37 and 42 of the Provisions on Protecting Lawyers' Right to Practice in accordance with the Law
Article 289 of the Provisions on the Procedure of Public Security Organs in Handling Criminal Cases (revised in 2020)
Case 2: Lawyer Wang Moumou's Application for Supervision of the Right to Meet
Keywords
The right to meet the enforcement lawyer for compulsory measures against duty crimes
[Main point]
The handling of duty related crime cases involves the division of labor, cooperation and mutual cooperation of supervisory organs, procuratorial organs, investigative organs and other departments, as well as the connection and application of criminal procedure law, supervisory law and other laws and judicial interpretations. For problems such as inaccurate understanding and application of relevant laws that cause obstacles to lawyers' meeting, procuratorial organs should actively perform their legal supervision functions according to law, actively communicate and coordinate, We will fully ensure that lawyers practice in accordance with the law.
Basic Case
On December 28, 2018, the investigation of Lang's suspected bribery was concluded by the supervision committee of a city and a district, and was transferred to the procuratorate of a district for review and prosecution. On January 4, 2019, a district procuratorate decided to arrest Lang and handed him over to an investigation organ for execution. On January 7, 2019, lawyer Wang asked to meet Lang. An investigation organ rejected Wang's request for an interview on the ground that the arrest warrant marked "the interview must be approved by the case handling department".
[Supervision by procuratorial organs]
Acceptance of clues On January 7, 2019, the lawyer Wang Moumou complained to a district procuratorate that an investigation authority prevented him from meeting with the criminal suspect according to law on the ground that the meeting required the permission of the case handling department. The district procuratorate accepted the case according to law on the same day.
After investigating and verifying that a district procuratorate has accepted a case, listen to the lawyer Wang Moumou's appeal and reason, communicate with the prosecutor in charge and the police handling the case, and verify the reason why Wang Moumou's meeting was blocked. After visiting, checking and reviewing the case files, it was found that when an investigation organ was carrying out an arrest, the police handling the case, because they did not master the new provisions of the revised Criminal Procedure Law, without verifying with the prosecutor in charge, marked the case on the arrest warrant as a restricted interview case, resulting in the obstruction of the lawyer Wang Moumou's meeting with "three certificates".
Supervision Opinions After investigation and verification, a district procuratorate believed that an investigation organ expanded the scope of restricted interview cases during the execution of arrest, violated Article 39 of the Criminal Procedure Law of the People's Republic of China, Article 33 of the Lawyers Law of the People's Republic of China and other provisions, and violated the right of lawyers to meet. On January 7, 2019, a district procuratorate urged the investigation organ to guarantee the lawyer Wang to exercise the right to meet in a timely manner. On January 14, in order to prevent the recurrence of such problems, a district procuratorate issued a "procuratorial opinion" to the investigation organ, requesting that the arbitrary expansion of the scope of restricted interviews with cases, illegal restrictions on lawyers' meetings and other acts be corrected and rectified in accordance with the law.
Supervision effect In this case, lawyer Wang complained to a district procuratorate on the day when his rights were blocked. The district procuratorate accepted, investigated and supervised the case on the same day, and solved the problem of lawyer meeting on the same day. After handling cases, in order to fully guarantee lawyers' legal practice and effectively perform their legal supervision functions, a district procuratorate held a symposium on the handling of job-related crime cases, combed out the problems that the decision making organs and executive organs tend to ignore or infringe on lawyers' right to practice in the detention, arrest and other links of job-related crime cases, studied effective measures, and effectively increased the supervision of similar cases, The transfer execution and supervision shall be carried out simultaneously.
【 Guiding significance 】
1. In case of new changes in the performance of lawyers due to the revision of laws and judicial interpretations, the procuratorial organ shall guarantee lawyers' relevant practice rights in a timely manner according to law. The right to meet is a basic litigation right enjoyed by lawyers. Restrictions on lawyers' meeting must be clearly stipulated by law. The original Criminal Procedure Law stipulates that there are three types of crimes, namely, crimes against national security, crimes of terrorist activities, and especially serious bribery crimes. When the defense lawyer meets with the criminal suspect and defendant, he or she needs to obtain the permission of the investigation organ in advance. On October 26, 2018, after the amendment of the Criminal Procedure Law, "extraordinarily serious bribery cases" were no longer included in the scope of restricted interview cases. If the case handling organ's inaccurate understanding of the newly amended law leads to the expansion of the restricted scope of lawyers' meeting, the procuratorial organ shall supervise and correct it in a timely manner according to law.
2. In the process of handling duty crime cases, the procuratorial organ should attach great importance to communication, cooperation, supervision and restriction, so as to create conditions for comprehensively guaranteeing lawyers' right to practice. After the reform of the supervisory system and the amendment of the Criminal Procedure Law, the procedures for handling duty related crimes have been significantly adjusted. After the procuratorial organs accept the duty related crimes transferred by the supervisory organs, they need to go through the formalities for compulsory measures in a timely manner and coordinate the implementation of the investigation organs. The case handling involves the cooperation of multiple departments. In the process of performing their duties according to law, procuratorial organs should actively promote the case handling organs to enhance their awareness of rights protection, jointly safeguard the environment for lawyers to practice according to law, and comprehensively enhance the credibility of law enforcement and justice.
[Relevant regulations]
Articles 39 and 49 of the Criminal Procedure Law of the People's Republic of China
Article 33 of the Law of the People's Republic of China on Lawyers
Articles 57 and 58 of the Rules of Criminal Procedure of the People's Procuratorate
Article 7 of the Provisions on Protecting Lawyers' Right to Practice in accordance with the Law
Case 3: Lawyer Chen Moumou's Application for Supervision of the Right to Meet
Keywords
Direct acceptance of investigation and residential surveillance lawyers meet
[Main point]
If a defense lawyer applies for an interview after the People's Procuratorate decides to place him under residential surveillance according to law after handling a case directly accepted for investigation, he shall arrange the interview in a timely manner and shall not be monitored. There are no restrictions on the length and frequency of the defence counsel's meetings. The People's Procuratorate shall strengthen internal supervision over improper acts that affect lawyers' right to practice in its own law enforcement.
Basic Case
On May 20, 2019, a district procuratorate decided to file and investigate the case of Qian, who was suspected of executing the judgment, ruling on the crime of dereliction of duty and abuse of power. On July 23, 2019, it decided to monitor his designated residence. On July 24 of the same year, Mr. Qian's family entrusted Mr. Chen, a lawyer of a law firm, to serve as Mr. Qian's defense lawyer. On July 24 and 29 of the same year, lawyer Chen applied to meet with Qian; The investigation department of the district procuratorate arranged meetings on July 26 and 31 of the same year, each meeting lasted about 30 minutes. On July 31 of the same year, lawyer Chen applied for a meeting again, but the investigation department of the District Procuratorate did not arrange a meeting.
[Supervision by procuratorial organs]
On August 5, 2019, the lawyer Chen Moumou reported to the District Procuratorate that the investigation department of the court did not arrange his third meeting with Qian Moumou. The first two meetings were limited in duration, and there were staff in and out during the meeting. A district procuratorate has accepted the case of Chen accusing the investigation department of violating the right to meet.
After investigation and verification, a district procuratorate found out that the investigation department had arranged Chen to meet Qian twice, and the time limit for each meeting was about 30 minutes. During the second meeting, there was indeed one staff visit. After the meeting ended on July 31, 2019, Mr. Chen immediately applied for a third meeting. The investigation department did not arrange a third meeting with Mr. Chen because of his continuous application for meeting.
Supervision Opinions The procuratorate of a district, upon examination, believes that the investigation department of the district has violated laws and regulations in the process of law enforcement: First, the current law does not limit the length and frequency of defense lawyers' meetings. When the investigation department arranges two meetings with Chen, it limits the length of time to 30 minutes, and does not arrange a third meeting for the reason of affecting investigation work, etc, It is a disguised violation of the right of defense counsel to meet. Second, according to Article 39 of the Criminal Procedure Law of the People's Republic of China and Article 7 of the Provisions on the Protection of Lawyers' Practicing Rights in accordance with the Law, when defense lawyers meet criminal suspects, the case handling organ shall not send personnel to be present. During the second meeting of Mr. Chen, the investigation department had staff in and out of the meeting place, which resulted in irregular law enforcement.
After a district procuratorate complained that the appeal procuratorial department had put forward a clear supervision opinion to the investigation department, the investigation department of the district procuratorate arranged a third meeting with the lawyer Chen Moumou in the afternoon of August 6, 2019, and rectified the irregular behaviors such as the random access of police officers during the meeting. Lawyer Chen Moumou expressed satisfaction with the result of the handling. In order to further deepen the effect of supervision, a district procuratorate conducted a comprehensive investigation of such problems and found that the public security organs and the People's Procuratorate still violated or in disguised form restricted the right of defense lawyers to meet to varying degrees in the process of handling residential surveillance cases. On March 20, 2020, a district procuratorate jointly signed the Provisions on Guaranteeing Lawyers' Right to Meet During Suspects' Residence under Surveillance in accordance with the Law in conjunction with relevant political and legal organs, which clearly requires the investigation organ to regulate and arrange the meeting in a timely manner after receiving the application for meeting with the defense lawyer, and shall not limit the length and frequency of the meeting with the defense lawyer.
【 Guiding significance 】
1. If the defense lawyer applies to meet with the criminal suspect under residential surveillance, and the case handling organ has restrictions on the length and number of meetings that may hinder the meeting, the People's Procuratorate shall supervise and correct the situation in a timely manner according to law. When a defense lawyer meets with a criminal suspect in custody, the investigation organ shall arrange the meeting in a timely manner, which shall not exceed 48 hours at the latest. According to the law, residential surveillance imposes less on personal freedom than detention, arrest and other custodial coercive measures. When the defense lawyer applies for meeting with the criminal suspect under residential surveillance, the case handling organ shall arrange the meeting in a timely manner with reference to the relevant provisions of the Criminal Procedure Law. If the right of lawyers to meet is infringed or restricted in a disguised form by restricting the length and frequency of the meeting, or there are irregular acts such as the access of case handlers during the meeting, the People's Procuratorate shall supervise and correct them in a timely manner according to law, and unify the standards of law enforcement.
2. The People's Procuratorate shall strictly strengthen internal supervision over procurators who have illegal or improper behaviors that affect lawyers' legal practice. The procuratorial organ is a legal supervision organ, which should firmly establish the idea that supervisors must accept supervision, and do a better job of self supervision with stricter standards. If prosecutors have improper behaviors that affect lawyers' legal practice, the complaint and appeal procuratorial department shall not evade or cover up the problem, put forward corrective suggestions according to law on the basis of finding out the facts, and urge the case handling department to strictly standardize law enforcement.
[Relevant regulations]
Articles 39 and 49 of the Criminal Procedure Law of the People's Republic of China
Article 7 of the Provisions on Protecting Lawyers' Right to Practice in accordance with the Law
Case 4: Lawyer Zhu Moumou applied for paralegal assistance to meet the supervision case
Keywords
Lawyer assistant assists in meeting linkage guarantee
[Main point]
If the case handling organ restricts or obstructs in disguised form its assistance to the defense lawyer to meet with the criminal suspect or defendant on the ground that the status of the paralegal does not meet the requirements, the People's Procuratorate shall put forward suggestions for correction according to law. The People's Procuratorate should actively promote the establishment and improvement of a joint handling mechanism to safeguard the right of lawyers and their assistants to practice together with the People's Court, investigative organs and judicial administrative organs, and safeguard the right of lawyers to practice in accordance with the law.
Basic Case
On July 12, 2019, Zhou was detained by an investigation organ for suspected fraud. On July 15 of the same year, Zhu Moumou, a lawyer, accepted the entrustment of Zhou Moumou's father, a criminal suspect in custody, to provide legal services for Zhou Moumou. The next day, the lawyer Zhu Moumou and the lawyer assistant Cao Moumou went to a detention center in a district to ask for a meeting with the criminal suspect Zhou Moumou. The detention center staff proposed that the lawyer assistant should be verified by the case handling authority to assist in the meeting. On July 19, 2019, Zhu Moumou, a lawyer, contacted an investigation authority by telephone and asked to verify the identity of Cao Moumou, a lawyer assistant. The case handlers refused on the grounds that they had not gone through the relevant procedures and did not know the specific way to verify the identity of the paralegal. On the same day, Zhu and Cao applied to the Rights Protection Center of the Lawyers Association of a city for rights protection and assistance. On September 2, 2019, Zhu and Cao went to an investigation authority to handle the identity verification procedures for paralegals, and jointly met with the suspect Zhou on the 23rd of the same month.
[Supervision by procuratorial organs]
Clue Acceptance On September 16, 2019, the Supreme People's Procuratorate received the clues of lawyers' rights protection cases handed over by the All China Lawyers Association, involving the rights protection cases of Zhu Moumou, a lawyer in a city and a district, and Cao Moumou, a lawyer assistant. On September 19 of the same year, the Supreme People's Procuratorate handed over the clues of the case to a municipal procuratorate for handling.
After investigating and verifying that a district procuratorate has accepted the case, it asked Zhu Moumou, a lawyer, about the protection of rights, interviewed the investigators of the original case, listened to their opinions, and listened to Zhou Moumou, a criminal suspect, about the lawyer's meeting.
Supervision Opinions A district procuratorate reviewed and found that, according to the provisions of Article 7 of the Provisions of the Supreme People's Court, the Supreme People's Procuratorate, the Ministry of Public Security, the Ministry of National Security, and the Ministry of Justice on the Protection of Lawyers' Right to Practice in accordance with the Law, the original case handling organ refused to verify the identity of the paralegal. In view of the fact that the case handling organ had completed the relevant verification work before the supervision of the procuratorial organ, and the complainant said that the application for safeguarding rights had been resolved, according to the provisions of Article 49 of the Criminal Procedure Law of the People's Republic of China, Article 57 and Article 518 of the Criminal Procedure Rules of the People's Procuratorate, he orally put forward corrective suggestions to an investigation organ. On October 25, 2019, a district procuratorate replied to the complainant in writing and informed the Bar Association of the decision on supervision and handling of the case.
Supervision effect After receiving the procuratorial supervision opinions, an investigation organ said that it would draw inferences from one instance to avoid similar disguised restrictions and obstacles to the litigation rights of paralegals. In order to fully protect the lawyer's right to practice in accordance with the law, on December 5, 2019, a district procuratorate held a seminar with the district's political and legal authorities and the lawyers' association to safeguard the lawyer's (assistant's) right to meet in accordance with the law, and reached consensus on the specific departments, audit methods and relief channels that bear the responsibility of examining the identity of paralegals in different links. On January 3, 2020, the District Procuratorate, the District Court, the District Public Security Branch and the District Judicial Bureau jointly signed the Measures for Assistant Lawyers to Assist in Meeting and Guarantee Litigation Rights, which clearly stipulates that the identity of assistant lawyers should be verified once and repeatedly. The district procuratorate announced the office location and contact information of all case handling organs in the region, as well as the procedures for the exercise of litigation rights and relief of paralegals through "two micro and one end". The District Procuratorate has also established a joint meeting system with the District Judicial Bureau to build a fast linkage disposal platform to safeguard lawyers' right to practice, and a specially assigned person is responsible for maintaining the complaints, charges or appeals of lawyers and their assistants' right to practice.
【 Guiding significance 】
1. If the case handling organ in disguised form restricts or obstructs the paralegal to assist in meeting with the criminal suspect or defendant in custody, the People's Procuratorate shall accept, investigate and deal with it in a timely manner according to law. According to the provisions of the Provisions on the Protection of Lawyers' Right to Practice in accordance with the Law issued by the Supreme People's Court, the Supreme People's Procuratorate, the Ministry of Public Security, the Ministry of National Security and the Ministry of Justice, paralegals are other lawyers in the law firm where the defense and agent lawyers work and interns applying for lawyer practice. Assisting paralegals in meeting with criminal suspects and defendants in custody is one of lawyers' right to practice, It is the proper meaning of legal supervision that the procuratorial organ should guarantee the assistant lawyers' assistance in meeting according to law. It should give play to the procuratorial supervision function and deal with complaints and appeals after the assistant lawyers' practice rights are obstructed in a timely manner according to law.
2. When handling lawyers' rights protection cases, the People's Procuratorate should not only ensure the accuracy of supervision, but also pay attention to the normalization of supervision, and establish and improve the working mechanism to protect lawyers' right to practice. It is a new problem to restrict and obstruct the meeting of paralegals in disguised form to ensure that lawyers can meet in accordance with the law. The procuratorial organ strengthens the communication and cooperation with the case handling organ through investigation, discussion, discussion, countersignature of normative documents and other forms, and timely puts forward supervision and correction opinions on the situation that hinders the practice rights of paralegals in case handling, which is conducive to solving such problems from the source. At the same time, we will further unblock the information sharing mechanism between the 12309 Procuratorial Service Center and functional organs, and promote the implementation of the right to practice of paralegals by relying on the information technology application platform.
[Relevant regulations]
Articles 14 and 49 of the Criminal Procedure Law of the People's Republic of China
Articles 57, 58 and 552 of the Rules of Criminal Procedure of the People's Procuratorate
Article 1, Article 2, Article 7, Article 42, and Article 48 of the Provisions on Protecting Lawyers' Right to Practice in accordance with the Law
Case 5: Lawyer Hou Moumou's application for supervision of the right to express opinions
Keywords
The right to know about an appeal case of second instance without holding a court session
[Main point]
If the appeal case of second instance decides not to hold a court session, the defense lawyer shall be heard according to law. The People's Procuratorate shall supervise the correction of cases where the defense lawyer has submitted written opinions when appealing and will not listen to the defense lawyer's opinions after the decision of the second instance not to hold a court session, which restricts or deprives the lawyer of his right to express opinions. If the defense lawyer's right to practice such as the lawyer's right to express opinions is violated in the process of appeal of second instance without holding a court session, the People's Procuratorate shall conduct a comprehensive investigation and verification, supervise according to law, and promote the proceeding of second instance according to law.
Basic Case
On October 31, 2019, Xie was sentenced by a county court to one year and nine months' imprisonment for intentional injury. On November 6, 2019, Xie filed an appeal. On November 24 of the same year, Xie entrusted Hou, a lawyer of a law firm, as the defender of the second instance. On December 3 of the same year, the intermediate court of a city interrogated Xie according to law. On December 19 of the same year, the intermediate court of a city decided not to hold a hearing, and made a ruling rejecting the appeal and upholding the original judgment the next day.
[Supervision by procuratorial organs]
On March 11, 2020, the defense lawyer of Xie Moumou's criminal appeal case Hou Moumou sent a letter to the procuratorate of a city, accusing the intermediate court of a city of illegal acts such as failing to hold a court session when it should have held a court session in the process of the second instance, failing to listen to the opinions of the defender after deciding not to hold a court session, and failing to respond to the application for bail pending trial submitted by the petitioner. A city procuratorate will accept the letter according to law on the day it receives it.
The investigation verified that the procuratorate of a city, after reviewing the original case file, asking Mr. Hou, and communicating with the presiding judge of the intermediate court of a city twice, found out: first, the submission of new evidence. On December 16, 2019, the defense lawyer Hou Moumou submitted his written defense opinions, and attached the telephone recording materials of three witnesses he picked up by himself. An intermediate court of a city examined the reasons and basis for Hou's defense, decided to investigate and verify one of the witnesses in person, and made a transcript. The witness alleged that some words in the telephone recording on the spot were too personal. The other two witnesses were investigated and verified by telephone, and they also explicitly refused to testify in court for the appellant, saying that the testimony given in the investigation phase should prevail. The second is about protecting the litigation rights of defense lawyers. Hou proposed to apply to the court for the opening of the second instance, but the intermediate court of a city did not listen to his opinion. It is understood that the intermediate court of a city did not listen to the opinions of the defense lawyer after it decided not to hold a hearing. It was also found that during the appeal period, the defender applied in writing for bail pending trial, and the intermediate court of a city did not make a decision to deal with it, nor did it give a written explanation of the reasons.
The supervision opinion was reviewed by the municipal procuratorate, which believed that, first, it was untrue that the defense lawyer accused the intermediate court of a city of failing to hold a court session when it should. After the three audio recordings submitted by the defense lawyer were investigated and verified by the court, the relevant witnesses denied the authenticity of the contents of the audio recordings. It was not improper for a city intermediate court to decide not to hold a hearing in accordance with Article 234 of the Criminal Procedure Law of the People's Republic of China. Second, the intermediate court of a city has violated the law. In the process of handling an appeal case, the intermediate court of a city, after making a decision not to hold a court session, did not listen to the opinions of lawyers, did not make a decision to deal with the application for change of compulsory measures and did not explain the reasons in writing, in violation of Articles 97 and 234 of the Criminal Procedure Law of the People's Republic of China, the Supreme People's Court, the Supreme People's Procuratorate, the Ministry of Public Security, the Ministry of National Security The provisions of Article 2, Article 6, Article 21 and Article 22 of the Provisions of the Ministry of Justice on the Protection of Lawyers' Right to Practice in accordance with the Law have violated the right to know, the right to express opinions and other litigation rights of defense lawyers.
Supervision effect On March 20, 2020, the procuratorate of a city orally proposed a corrective opinion to the presiding judge of the intermediate court of a city. On the same day, a municipal procuratorate replied to Hou in writing and informed him by telephone that it would continue to track and supervise the infringement of lawyers' right to practice in the second instance appeal case without hearing. On May 18 of the same year, the procuratorate of a city issued procuratorial suggestions to the intermediate court of a city on the above issues. In order to further promote the protection of lawyers' right to practice, the procuratorate of a city took the lead in convening a symposium of the intermediate court of a city, the judicial bureau of a city, and the lawyers' association of a city, and jointly formulated the Measures for the Linkage Treatment of Safeguarding Lawyers' Right to Practice. On August 20 of the same year, an intermediate court of a city replied in writing that it would strictly implement the requirements of the law, strengthen the rectification of the problems existing in the trial of second instance without holding a court session, such as not informing the decision to hold a court session, not fully listening to the opinions of lawyers, and not explaining the reasons in writing, protect the right of lawyers to practice in accordance with the law, and jointly promote the construction of a legal professional community with the procuratorate of a city.
【 Guiding significance 】
1. The decision not to hold a court session to hear an appeal case of second instance but not to listen to the opinions of the defense lawyer is a procedural violation, and the People's Procuratorate shall supervise and correct it. If the people's court, after examination, decides not to open a court session to hear an appeal case of second instance, it shall hear the opinions of the defense lawyer according to law, which is a legally required procedure. The people's court may not stop hearing the opinions of the defense lawyer when it decides not to hold a court session on the ground that the defense lawyer has submitted written opinions at the time of appeal. For similar acts that restrict or deprive lawyers of their right to express opinions, the People's Procuratorate shall supervise and correct them, ensure that the right of defense lawyers to practice is guaranteed, and ensure that the appeal case of second instance is not heard in court and the procedure is legal.
2. If the appeal case of second instance decides not to hold a court session, the defense lawyer's right to know and other professional rights shall be fully guaranteed. If the second instance is not heard in court, the opinions of lawyers shall be fully listened to. When handling such cases of complaint and appeal, the People's Procuratorate shall directly make a ruling rejecting the appeal against the decision not to hold a court session without being informed, and conduct a comprehensive investigation and verification of violations of the defense lawyer's right to practice, such as the failure to inform the application for changing compulsory measures and explain the reasons in writing, and put forward targeted supervision opinions, Fully protect the legal rights of lawyers in the second instance proceedings, and jointly safeguard the judicial credibility.
[Relevant regulations]
Articles 97 and 234 of the Criminal Procedure Law of the People's Republic of China
Articles 2, 6, 21 and 22 of the Provisions on Protecting Lawyers' Right to Practice in accordance with the Law
Giving Play to the Function of Procuratorial Supervision and Protecting Lawyers' Right to Practice According to Law ——The person in charge of the Tenth Procuratorate Office of the Supreme People's Procuratorate answered questions from reporters on typical cases of safeguarding lawyers' right to practice
On February 5, the Supreme People's Procuratorate released five typical cases of safeguarding lawyers' right to practice. Xu Xiangchun, Director of the Tenth Procuratorial Office of the Supreme People's Procuratorate, answered questions from reporters on relevant issues.
Reporter: What are the considerations for the procuratorial organ to release these five typical cases?
Xu Xiangchun: To protect the lawyer's right to practice is to protect the legitimate rights and interests of the parties. It is an important content to respect and protect human rights, an important measure to safeguard judicial fairness and credibility, and a specific practice and inevitable requirement to comprehensively promote the rule of law. However, at present, the old problems in the process of lawyers' practice, such as difficulty in reading papers, meeting, and investigating and collecting evidence, have not been fundamentally solved. New problems have emerged in the fields of lawyers on duty, sentencing consultation, and other areas that need to be solved urgently. The current situation of the protection of lawyers' rights and interests intertwined with new and old problems still lags behind the growing demand of the people for the rule of law and human rights. For the first time, the procuratorial organ issued a typical case of safeguarding lawyers' right to practice, mainly considering the following factors:
First, it is conducive to meeting the people's higher requirements for the rule of law. The degree of protection of lawyers' right to practice is related to whether the role of lawyers can be effectively played, whether the legitimate rights and interests of the parties can be effectively protected, and the realization of "making the people feel fair and just in every judicial case". The release of typical cases is conducive to promoting the solution of new and old problems that affect or hinder the practice of lawyers, and it is also a positive response to the people's demand for the rule of law.
Second, it is conducive to promoting the detailed implementation of the lawyer practice security system mechanism. The Central Committee of the Communist Party of China and the political and legal organs of the Central Committee have successively issued relevant regulations to safeguard lawyers' right to practice, and the fast linkage disposal mechanism to safeguard lawyers' right to practice and the joint meeting mechanism for lawyers have been initially established. "One deployment, nine implementation". How to implement the existing regulations and promote the smooth and effective operation of the lawyer practice security mechanism is the common responsibility and mission of the case handling organs and their staff. It is not only a clear requirement of the law, but also an implication of the nature of legal supervision by the procuratorial organ for acts that hinder lawyers from practicing according to law. The procuratorial organ publishes typical cases on the basis of carrying out the work of safeguarding lawyers' right to practice, aiming to guide and promote the implementation of relevant systems and regulations to safeguard lawyers' right to practice in every case and every link of case handling.
Third, it is conducive to building a win-win litigation pattern. The lawyers' team is an important force to implement the basic strategy of governing the country according to law and build a socialist country ruled by law, and an important part of the socialist legal work team. Procurator General Zhang Jun has repeatedly stressed that there is no problem of higher or lower legal supervision. "Don't think that we are the national legal supervision organ, we should supervise each other". We should make good use of political wisdom and legal wisdom, and firmly establish the concept of win-win, multi win and win-win legal supervision. Through the release of typical cases, we urge local procuratorial organs to strengthen the review and handling of lawyers' complaints and appeals, promote judicial organs to improve the level of judicial standardization, realize the complementary advantages and positive interaction between lawyers and political and legal organs, and improve the quality and effectiveness of judicial organs in handling cases.
Reporter: What are the characteristics of the five typical cases released this time?
Xu Xiangchun: These five typical cases have their own characteristics. For example, the case in which the lawyer Lu Moumou applied for the supervision of the right to know involved the lawyer's right to know after the major procedural decision of the case handling organ was made. In judicial practice, the defense lawyers can not be informed of major procedural decisions in a timely manner, which is due to the irregular law enforcement of the case handling organ itself and the weak legal awareness of the case handling personnel, as well as the poor communication between the lawyers and the case handling personnel, and the untimely connection of information and other factors. In the process of handling the case, the procuratorial organ led the public security, court, judicial administration and other organs to jointly formulate a series of normative documents, preventing the occurrence of the problem from the source; At the same time, we will promote case handling agencies to strengthen information construction, effectively use intelligent means to solve problems such as poor information communication, and ensure lawyers' right to know in a timely and efficient manner.
In case II, the lawyer Wang Moumou applied for the supervision of the right to meet. In view of the protection of the lawyer's right to practice in the handling of duty crime cases after the reform of the supervision system and the amendment of the Criminal Procedure Law, due to the major adjustment of the case handling procedure, it is more important for the supervisory organ, the procuratorial organ and the public security organ to jointly protect the lawyer's right to practice. The case of Chen Moumou, a lawyer in Case 3, applying for supervision over the right to meet, is a problem of how the procuratorial organ guarantees the right to meet lawyers and strengthens internal supervision when handling directly accepted investigation cases after the reform of the supervisory system and the reform of the internal organs of the procuratorial organ. Case 4 lawyer Zhu Moumou applied for paralegal assistance to meet the supervision case, involving the status of paralegal and the protection of practice rights. The case of Hou Moumou, the lawyer of Case 5, applying for the supervision of the right to express opinions, involves the right to express opinions and the right to know of the lawyer in the appeal case of second instance.
The five cases all originated from lawyers' complaints. The relevant procuratorates' complaint and appeal departments earnestly performed their duties, comprehensively investigated and verified, dared to supervise, and were good at supervision, and achieved good results in handling cases.
Reporter: Since 2019, what work has the procuratorial organ carried out in the relief and protection of lawyers' right to practice? How effective?
Xu Xiangchun: The procuratorial organ has mainly done the following work in the protection of lawyers' right to practice:
First, focus on strengthening infrastructure and informatization construction. Prosecutors at all levels throughout the country have cancelled security checks on lawyers and their belongings. Lawyers can enter 12309 Hall with their valid practice certificates to carry out relevant work. The vast majority of procuratorial organs have set up a "green channel" for lawyers on the basis of canceling security checks. Procuratorial organs at all levels have set up lawyer's conference rooms, and most of them have also set up special lawyer's conference rooms. On March 23, 2020, "12309 China Prosecutorial Network", the comprehensive portal of procuratorial organ services across the country（ https://www.12309.gov.cn ）On the prominent position of the home page, a special area for the protection of lawyers' right to practice was added, and a special line for lawyers' right protection was opened in the "12309 Procuratorial Hotline", which was dedicated to receiving complaints and complaints of lawyers' violation of their right to practice. The WeChat official account of "12309 China Procuratorate Network" and mobile APP client were also launched simultaneously.
The second is to focus on improving the relevant systems for the protection of lawyers' right to practice. The procuratorial organs at all levels throughout the country actively solicited the opinions of the Provincial Committee of Political Science and Law, the Provincial High Court, the Provincial Department of Public Security, the Provincial Department of Justice and other units, widely listened to the opinions and suggestions of deputies to the National People's Congress and lawyers' representatives, and formulated and improved relevant normative documents in accordance with the requirements of the Supreme People's Procuratorate and local conditions. For example, the Zhejiang Provincial People's Procuratorate issued the Interim Provisions on Handling Cases that Obstruct Defenders' Procedural Agents from Exercising Procedural Rights According to Law; The People's Procuratorate of Henan Province printed and distributed the Opinions of the People's Procuratorate of Henan Province on Implementing the "Run at Most Once" Reform of the Procuratorial Link to Further Guarantee Lawyers' Right to Practice; The Liaoning Provincial People's Procuratorate formulated the Measures of Liaoning Provincial People's Procuratorate for Handling Lawyers' Non local Paper Reading Work (for Trial Implementation) and so on.
The third is to accept and handle complaint cases that hinder lawyers' right to practice according to law. From January to December 2020, the procuratorial organs nationwide reviewed and handled more than 2000 complaints of infringement of lawyers' right to practice. Among them, more than 1600 have been completed. From the perspective of case acceptance, there are more than 600 cases reflecting the "restriction on lawyers' meeting correspondence"; There are more than 300 pieces reflecting "documents not delivered or notification of transfer"; There are more than 200 pieces reflecting that "lawyers are not allowed to consult, extract and copy files". In handling cases, various localities performed their supervisory functions according to law, and verified more than 1200 cases of infringement of lawyers' right to practice. Among the verified cases, more than 700 were notified to be corrected and 500 procuratorial recommendations were issued. In addition to strengthening case handling efforts, all localities have also actively strengthened communication with judicial administration, people's courts, public security, lawyers' associations and other units, unified thinking and understanding, and promoted the formation of joint efforts to safeguard lawyers' right to practice through symposiums, case coordination meetings and other forms.
Reporter: After the issuance of typical cases, how can the Supreme People's Procuratorate continue to strengthen the effectiveness of handling cases?
Xu Xiangchun: At present, all regions have made it clear that the protection of lawyers' right to practice is the responsibility of a special person or a special shift. Each provincial hospital should urge the regions under its jurisdiction to strictly comply with the requirements of people's letters and visits, and handle each lawyer's complaint and appeal case in a down-to-earth manner against the handling standards of typical cases, and properly handle the conflicts and disputes related to the protection of lawyers' right to practice in accordance with the law. The Supreme People's Procuratorate will continue to send letters to supervise the handling of key cases of complaints of infringement of lawyers' right to practice, open a column in the Procuratorial Daily to protect lawyers' right to practice, publicize and report good experience and good practices, urge and guide local governments to do a good job in handling cases in the second half of the article, focus on in-depth excavation of cases with typical reference significance, and timely summarize and publish.
On December 25, 2020, Procurator General Zhang Jun led a team to the National Association of Lawyers for consultation and held a joint meeting with the Ministry of Justice, the National Association of Lawyers and lawyers' representatives. After the meeting, the Supreme People's Procuratorate, the Ministry of Justice and the National Association of Lawyers jointly issued the Minutes of Meeting. Next, the Supreme People's Procuratorate should urge local procuratorates at all levels to strictly implement it, promote the establishment of a regular consultation mechanism for prosecutors, and carefully implement Xi Jinping's idea of rule of law in the regular supervision of lawyers' rights to practice, so as to make positive contributions to promoting the comprehensive rule of law.
