On Defense Lawyer’s Duty Of Confidentiality

The defense lawyer’s confidentiality obligation is a topic that has been discussed with the emergence of the lawyer’s profession.It means that the lawyer has the obligation to keep confidential the relevant information he knows within a certain period of time.Unless the consent of the client is obtained or the information is no longer confidential,the lawyer’s confidentiality obligation will always exist.Due to the late start of China’s lawyer system,the defense lawyers’ confidentiality obligation is not perfect,and there are many problems in practice.This paper introduces the connotation,nature and value of defense lawyers’ confidentiality obligation in detail by means of pushing forward one after another,and indicates the important significance of defense lawyers’ confidentiality obligation to China’s judicial construction.Then,it studies the provisions and implementation of the confidentiality obligation of defense lawyers in China,analyzes the existing problems。The first part mainly introduces the basic theory of defense lawyer’s duty of confidentiality in detail.First of all,from the defense lawyers the existing provisions of the confidentiality obligations in the body of the confidentiality obligations,time,object,content,the four basic elements,and according to the basic elements of summing up the connotation of confidentiality obligations,the defense lawyer confidentiality obligations is refers to the lawyers in practice on the other party aware of state secrets,commercial secrets,personal privacy and other related parties and information,with a confidentiality obligation,unless the client agrees to or the information is no longer as part of the secret,or attorney shall be permanently keep secrets for the principal,shall not disclose to any unit or individual;Secondly,this paper analyzes the nature of defense lawyers’ confidentiality obligation,puts forward different views on the nature of defense lawyers’ confidentiality obligation,and concludes the author’s own judgment on the nature of defense lawyers’ confidentiality obligation,that is,defense lawyers’ confidentiality obligation is an obligation that lawyers must undertake,not a right they should enjoy.Finally,this paper introduces the theoretical basis of defense lawyer’s confidentiality obligation,and understands the different theoretical basis of defense lawyer’s confidentiality obligation.The second part mainly analyzes the value of defense lawyer’s confidentiality obligation,which is of great significance in both procedural and substantive aspects.In terms ofprocedure,defense lawyer’s confidentiality obligation is conducive to promoting procedural justice.Firstly,in terms of the relationship between prosecution and defense,confidentiality obligation is conducive to strengthening the power of confrontation between defense and prosecution and promoting the realization of equality between prosecution and defense.Secondly,for the parties concerned,the obligation of confidentiality reflects the presumption of innocence and the requirement of not forcing the parties to prove their own crimes,which reflects the protection of the parties’ human rights.Finally,for lawyers,the duty of confidentiality requires the defense lawyers not to disclose the criminal information not yet mastered by the judicial organs of the clients to the judicial organs,which reflects the independence of lawyers from judges and prosecutors and is conducive to maintaining the independence of lawyers in litigation.In terms of entity,the defense lawyer’s confidentiality obligation is conducive to maintaining the trust relationship between the client and the defense lawyer,encouraging the client to inform the lawyer of all the facts of the case,so that the lawyer can better protect the substantive rights and interests of the client and realize substantive justice.The third part mainly reveals and analyzes the existing problems in the development of defense lawyers’ confidentiality obligation in China,including the existing problems in the relevant provisions of defense lawyers’ confidentiality obligation and the problems exposed by defense lawyers’ confidentiality obligation in judicial practice.In terms of the provisions on the confidentiality obligation of defense lawyers,there are some problems such as the narrow scope of the confidentiality subject,the unclear time of the confidentiality obligation,the unclear scope of the confidentiality obligation,and the vague exceptions to the confidentiality obligation.As for the implementation of defense lawyers’ confidentiality obligation,the main problems are: first,the professional ethics of lawyers’ confidentiality conflict with public ethics;Secondly,the defense lawyer’s duty of confidentiality will hinder the discovery of the facts of the case to some extent.Third,the defense lawyer’s secret behavior easily violates the defense lawyer to forge the evidence crime and the concealment crime;Fourth,in practice,there are a large number of defense lawyers can not effectively fulfill the obligation of confidentiality phenomenon.The fourth part is mainly based on the problems in the development of defense lawyers’ confidentiality obligation revealed in the third part,combined with the advanced experienceof foreign countries and relevant research of domestic scholars,and based on the actual national conditions of China,put forward specific Suggestions to solve the above problems.