An Empirical Study Of Criminal Lawyers’ Disciplinary Reasons

The disciplinary matter is one of the important contents of the lawyer’s disciplinary system,and it is also a prerequisite for the competent authority to make disciplinary decisions.The correct application of disciplinary matters can not only realize the functions of the disciplinary system,but also help maintain judicial justice and procedural justice.In the current practice of lawyer punishment in our country,the application of disciplinary reasons deviates from the original intention of the legislation,which not only violates the original intention of the disciplinary system and endangers the realization of the defense system’s functions,but also easily has an adverse impact on the protection of the defendant and defender’s litigation rights.This article adopts normative analysis and empirical analysis methods,starting from legal norms,sorting out the prospects for the application of disciplinary reasons,and then starting with empirical data,discussing the typified differences in the practice of disciplinary reasons.Finally,it analyzes the reasons for the discrepancy between the punishment practice and the original intention of the legislation,and predicts the future trend of the criminal lawyer’s punishment practice.Excluding the introduction and conclusion,this article has five parts.The first chapter introduces the main reasons why criminal lawyers are punished.First,clarify the connotation of criminal lawyers mentioned in this article,and then take the conflict of interest among the three roles of enthusiastic defenders,socialist legal workers and market economy entities as the starting point to clarify the two main reasons for criminal lawyers to be punished:loyalty and public welfare obligation.Based on two types of disciplinary reasons,two consensuses are put forward:First,the power of the state is far stronger than the accused,and it is more likely to cause harm to criminal lawyers.Second,human beings have the instinct to seek advantages and avoid harm.Based on two points of consensus,a basic hypothesis is put forward:if the probability of criminal lawyers being punished is constant,criminal lawyers are more likely to be punished for betraying the client.The second chapter is the normative analysis of criminal lawyers’disciplinary reasons.First of all,according to the classification of the main body of norms:laws and regulations and industry norms.Secondly,after a detailed analysis of the content of the norms,the types of legal reasons for punishment of criminal lawyers and concrete behaviors are determined:based on the interest-related subjects infringed by criminal lawyers’violations of regulations and disciplines,they are divided into two types:loyalty obligations and public welfare obligations.Types,combined with the theoretical sources of disciplinary reasons and existing regulations,in a nutshell,the original intention of the legislation is that criminal lawyers should take into account the two types of obligations in their practice,and the disciplinary agency should treat the two types of reasons equally in disciplinary practice.The third chapter is the empirical analysis of criminal lawyer’s disciplinary reasons.Through 496 empirical cases,this paper summarizes and sorts out the specific situations of preference arising from the practical application of disciplinary reasons.First,the overall situation is that criminal lawyers have strengthened their disciplinary efforts,and there are large regional differences;the punishment rate for public welfare obligations is higher than that for loyalty obligations;second,the complaint rate for loyalty obligations is higher than that for public welfare obligations;Third,the disciplinary consequences of loyalty obligations are relatively light,generally warnings,fines,admonitions,public condemnations,etc.,while the disciplinary consequences of public welfare obligations are heavier,usually such as suspension of practice,revocation of practice certificate,etc.;fourth,suspension of practice The main cause of the certificate is a criminal offence,and the charges involved are concentrated in the crime of forging and destroying evidence,bribery,arbitration and fraud.Among them,the crime of forging and destroying evidence has a higher application rate.One of the reasons is that the specific elements of the crime are vaguely defined,which leaves room for abuse by the public,procuratorate and judicial organs.The fourth chapter is the analysis of the causes of the deviation in the application of criminal lawyers’ disciplinary reasons.The original intention of the legislation is that criminal lawyers should take into account the two types of obligations in their practice,and the disciplinary agency should treat the two types of matters equally in the practice of punishment.However,the empirical data shows that the hypothesis proposed in the previous article based on norms and logic is in sharp contrast to the empirical conclusions.The proportion of public welfare obligations in the punishment cases is higher,which seems to reflect the preference of the punishment agencies for the application of public welfare obligations in practice.This article takes the existing omissions of the system and the original obstacles of the procedure as the origin,and summarizes the specific reasons why the punishment practice prefers to apply the public welfare obligation.First,the public,procuratorate and legal organs facilitate the punishment of criminal lawyers’ violations of their public welfare obligations.Specifically,the public,procuratorate,and judicial organs tend to form alliances with lawyers’ punishment organs,with flexible allocation of disciplinary powers and room for abuse.Second,it is difficult for the parties to punish criminal lawyers for violations of their loyalty obligations.For the parties,there are practical difficulties in detecting violations of loyalty obligations and procedural obstacles that facilitate punishment of such behaviors.Chapter Five predicts the future trend of criminal lawyer’s punishment practice.First of all,there will be more attention to violations of loyalty obligations.The reason is that the current legislative trend is more focused on safeguarding the legitimate interests of the parties,and the quality of defense as a reason for loyalty obligations has increased in practice;the parties’ awareness of rights protection has increased,and their ability to defend rights has increased;secondly,violations of public welfare obligations have declined.Punishment agencies have become more and more tough on the sanctions of deadlocked defenses,and the boundaries of public interest obligations have gradually become clear.Deadlocked defense strategies are gradually declining.Moderate technical defense strategies may become the choice of more criminal lawyers.In general,regulating the application of criminal lawyers’ disciplinary matters cannot be accomplished overnight.It requires the efforts of all parties to clarify the content of the regulations,strengthen professional ethics education,and limit the infringement of public rights on private rights.