On The Right Of Defense Of The Law Society

Criminal defence stands for the defence which is contraposed to the accused and is conferred by the law to the suspect as well as the defendant in the cases of criminal litigation. Under the most circumstances, such a sort of action has to be realized by the defendant with the assistance of his lawyer. The 'defence' is an old term and the defence coexists with the accusation. Criminal defence plays a crucial role in the cases of criminal litigation. Even though the existence of different contents in various historical periods, criminal defence still lies in and corresponds to criminal litigation. To a great extent, the system of defence directly reflects the status of a country's democracy and nomocracy. The rights of defence and that of the lawyer's belong to the basic categories of the system of defence. The studies on the above-mentioned relevant issues are necessary to consummate the system of criminal defence as well as the system of criminal litigation.First of all, this article discusses the issues about the defence and the rights of defence. Afterwards, the lawyer's defence rights are analysed on the basis of the theory of law. The emphasis is put on the legitimation of the lawyer's defence rights. It should be pointed that the lawyer's defence rights do not depend on the defence rights of the accused but come from the law. It can only be regarded as the procedure of implementing the lawyer's defence rights that the lawyer participates in the cases of criminal litigation due to the entrustment of the accused or the appointment of the court. As a kind of rights, the lawyer's defence rights are set by the law beforehand. It should be mentioned that thelawyer's defence rights are independent and the defence rights of the accused are not the basis of the lawyer's defence rights. Such a viewpoint corrects the theory that the lawyer's defence rights are based on the defence rights of the accused, gives prominence to the position of the defendant's lawyer in the cases of criminal litigation, lays a solid foundation for the right exertion of the lawyer's defence rights. Meanwhile, by means of the comparison of the contents of the defence rights of the accused and the lawyer's, it is observed that the lawyer's defence rights are not the conveyance of the defence rights of the accused. The contents of the two parties' rights are quite different. The rights of the accused cannot be taken by the defendant's lawyer, and vice versa. The set of the rights of the defendant's lawyer aims to protect the legal benefits of the accused. However, as mentioned above, the rights of the lawyer is pre-set by the law and do not originate from the rights which cannot be realized by the accused. It has to be mentioned that the defence rights do not come into being because of the commitment though the commitment can bring the rights. Notwithstanding the defence rights are associated with the entrustment of the suspect and the defendant, they do not engender due to the entrustment of the suspect and the defendant. The entrustment of the suspect and the defendant is just one of the conditions of realizing the rights of the defendant's lawyer, instead of the direct cause of bringing defence rights. In fact, the rights of defendant's lawyer are set by the law and the lawyer cannot be regarded as the savior of the suspect and the defendant. The lawyer has to firmly comply with the basic regulations of the law and make appeals on the basis of respecting the facts as well as the law. The lawyer's appeals may not be supported by the law and even be censured by the insiders if they surpassed theregulations of the law. The lawyer's defence rights are not general rights but the rights which are expecting the implementation.Finally, combining the existent problems of the practices of China's legislation and justice, according to the foreign countries' relevant legal regulations on the lawyer's defence rights as well as the international general practices, the suggestions on how to consummate the defence rights of the Chinese defendant's lawyers are considered and put forward. By means of the discussions on the above-mentioned issues, the article aims to carry forward such a standpoint that, as the legal servicemen of the suspects and the defendants, lawyers have to stick up for the legal rights of the suspects and the defendants so as to embody lawyers' social status and make more important contributions to the construction of China's legal system.