A Study On Crime-related Issues In Criminal Defense Business

With the deepening of the concept of governing the country according to law,the state has paid more and more attention to the protection of the rights of the suspect and defendant.As a party who discovers objective facts together with the prosecution and has the right to fight against the prosecution,he can help others to achieve fairness and safeguard others’ justice.There are various risks in the practice of criminal defense lawyers,and even have the tendency of rising.Especially in the campaign of cracking down on underworld and high-pressure anti-corruption,his criminal risk is prominent.This paper mainly uses the methods commonly used in thesis writing,such as literature analysis method,based on the theory of criminal law in China,analyzes the criminal problems that may be involved in different stages of criminal defense,discusses some difficult problems in practice,and puts forward some suggestions.This paper is divided into four partsThe first part mainly combines with the theory of neutral helping behavior to analyze whether some behaviors in criminal defense business should be punished by criminal law.First of all,after summarizing and listing the argumentation of "neutral help behavior should be punished by criminal law" in the theoretical circle of criminal law,combined with practical judicial cases,according to the logic of criminal procedure,this paper discusses that individual criminal defense business behavior is not punishable.This paper mainly focuses on whether the behavior of defense lawyers providing legal advice to the accused and their relatives and the behavior of defense lawyers charging agency fees are punishable,and puts forward their immature views through relevant practical cases,believing that the behavior of providing legal advice is legitimate business behavior,for example,It is the occupation requirement of counsel for counsel and relatives to provide legal advice service.Even if the suspect has produced or strengthened his intention due to legal advice,his behavior is not punishable in principle.Besides,when the defender is not colluding with the suspect,no matter how much agency fee is charged,it is a normal transaction behavior.As for the behavior of collecting the agency fee beyond the standard,the administrative responsibility should be borne accordingly.The second part mainly discusses the possible charges and existing problems in the process of interview,investigation and evidence collection.For example,in the investigation stage,when a suspect is interviewed,will it be a crime if the lawyer abetted the prosecution’s change of confession? Is it a crime for lawyers to obtain witness testimony by using guided questioning in the process of investigation and evidence collection,so as to reduce the penalty of the accused? These two problems are mainly discussed and solved in this section.Although the law has clearly given the defense lawyer the right to meet,investigate and collect evidence,it has not explained the scope of the right,which leads to the lawyer’s conviction in practice for abetting retraction of confession.In addition,because "induced questioning" leads to testimony contrary to the facts,it is regarded as inducing the witness to provide false testimony,that is,perjury;Therefore,in this part,it mainly focuses on how to explain the limitation of "inducement" and how to apply the specific dangerous crime to restrict the application of Article 306.The third part mainly aims at the stage of court trial,the speech and behavior of defense lawyers in court trial may cause disturbance of court order,and then discusses the necessity of adding the crime of disturbing court order in the ninth sentence.However,the problems in the legislation of the crime can not be ignored,such as: criminalizing some speech acts,ignoring that the defense lawyer belongs to the party who speaks more in court,which not only has the function of regulating the lawyer’s speech,but also has the function of limiting the speech“ The ambiguity of "etc" in "disrupting the order of the court,such as destroying court facilities,...",may lead to expanded interpretation,which makes defense lawyers dare not act in court.In order to better apply the accusation in judicial practice,the author thinks that the above problems should be limited interpretation.Through reading other literature and looking for relevant cases,this paper summarizes the suggestions on the application of non criminal measures for the crime of disturbing court order,hoping to better protect the court trial rights of criminal defense lawyers and play their due defense level in the court trial.The fourth part is the criminal defense lawyer divulges the practice secret to involve the crime question,the lawyer’s practice standard has stipulated clearly,in the case national secret,the commercial secret,the personal privacy and so on,the lawyer needs to give the confidentiality.However,there are some problems in judicial practice.After the criminal documents such as the examination of indictment are later identified as state secrets,it is found that the defense lawyer’s act of disclosing the documents to his family constitutes a crime.This also leads to the problems that this part wants to discuss,such as: the scope of criminal file materials belonging to state secrets,the judicial review of state secrets,the subject of the crime of intentionally divulging state secrets and so on.Looking at the current laws and regulations of our country,we can not draw a clear boundary for the above problems,which makes the criminal defense lawyers do not know how to respond when it comes to family members’ request to read the papers,which also leads to many defense lawyers in prison.Therefore,it is necessary for us to analyze whether the criminal file materials belong to the scope of state secrets and can be identified afterwards in combination with relevant judicial practice cases,so as to further analyze whether the disclosure of file materials by criminal defense lawyers constitutes a crime;On the other hand,the regulation of defense lawyers’ speech out of court is becoming more and more strict,especially the crime of divulging case information which should not be made public has been added in the ninth sentence.However,due to the problem of vague accusations,the defense lawyers can not find the boundaries of out of court speech.By reading the literature and referring to the practice of judicial practice,the author puts forward his own solutions,in order to limit the scope and draw a clear line between crime and non crime.