View source for Rights and Obligations of Criminal Defense Lawyers


=== '''A COMPILATION OF RELEVANT STATUTES''' ===

'''The right of criminal defense lawyers to mount a defense is protected by law (Law of the People's Republic of China on Lawyers: Articles 36 and 37)'''

• Article 36: When serving as a litigant representative or defender, a lawyer’s rights to debate or defend should be protected according to the law.

• Article 37: In legal practice, a lawyer's right of the person is inviolable.

'''The right to meet with a client (Criminal Procedure Law: Article 39; Interpretation on the Application of the "Criminal Procedure Law of the PRC", Supreme People’s Court, 2021: Article 56)'''

• Article 39: Defense lawyers can meet and communicate with criminal suspects and defendants in custody. Other defenders may also meet and communicate with criminal suspects and defendants who are in custody with the permission of the People's Court and the People's Procuratorate. Detention centers should promptly arrange meetings no later than 48 hours upon requests from defense lawyers holding a lawyer’s practice certificate, proof from a law firm and a letter of representation or legal aid letter, to meet criminal suspects in custody.
During the investigation period of cases of crimes endangering national security or involving terrorist activities, defense lawyers shall obtain permission from investigating organs before they meet the criminal suspects under custody. Investigating organs should inform the detention centers beforehand.
Defense lawyers can learn of the case circumstances and offer legal consultation during meetings with criminal suspects or defendants in custody; from the date the case is transferred for examination and prosecution, they can verify the relevant evidence with the criminal suspects and defendants. Defense lawyers meeting criminal suspects and defendants should not be monitored or listened in on.
Paragraphs 1, 3, and 4 of the Rules are applicable to defense lawyers meeting and communicating with criminal suspects and defendants under residential surveillance.

• Article 56 of Interpretation on the Application of the "Criminal Procedure Law of the PRC", Supreme People’s Court, 2021: Defense lawyers can meet and communicate with defendants who are in custody or under residential surveillance. Other defenders may also meet and communicate with defendants who are in custody or under residential surveillance with the permission of the people's court.

• According to Article 52 of the Public Security Organs Procedural Rules for Handling Criminal Cases (2020 Revised Edition), where a defense lawyer applies to meet with a criminal suspect in a case of crimes endangering national security or involving terrorist activities, case-handling departments shall, except in circumstances that hinder the investigation or may reveal state secrets, within three days of receiving the application, report to the persons in charge of public security organs at or above the county level to obtain approval, and to make a decision on permission. In cases involving circumstances that hinder the investigation or may reveal state secrets, the public security organ shall permit the meeting after the circumstances disappear.

'''The right to file petition and complaints (Criminal Procedure Law: Article 38)'''

• Article 38: During the investigation period, a defense lawyer may provide a criminal suspect with legal aid, file petitions and complaints on the suspect's behalf, apply for alteration of the compulsory measures, find out from the investigating organ the offense of which the criminal suspect is convicted and the information pertaining to the case, and offer his/her opinions.

• According to Article 42(3) of Public Security Organs Procedural Rules for Handling Criminal Cases, defense lawyers are allowed to provide legal aid, file petitions and complaints on the suspect's behalf.

'''The right to apply for bail on behalf of the defendant (Criminal Procedure Law: Articles 67 and 97)'''

• Article 67: A people’s court, people’s procuratorate and public security organ may allow a criminal suspect or defendant under any of the following conditions to be released on bail pending trial:

1. The criminal suspect or defendant commits a crime punishable by public surveillance, criminal detention or supplementary punishments separately meted out;

2. The criminal suspect or defendant commits a crime punishable by fixed-term imprisonment or severer punishments, but would not pose a threat to the society if he/she is released on bail pending trial;

3. Where the criminal suspect or defendant is suffering from a serious illness and cannot take care of him/herself, or is during pregnancy and breastfeeding period, thus would not pose a threat to the society if he/she is released on bail pending trial; or

4. His/her case has not been concluded upon expiry of the detention period, and therefore he/she needs to be released on bail pending trial.

Release on bail pending trial shall be executed by public security organs.

• Article 97: A criminal suspect or defendant and his/her statutory representative, close relatives or defender shall be entitled to apply for change of the compulsory measures. The people’s court, people ’s procuratorate and public security organ concerned shall make a decision within three days upon receipt of the application, and shall inform the applicant of the reasons for disapproval of such changes.

'''The right to consult, excerpt and reproduce the case file materials (Criminal Procedure Law: Article 40; Interpretation on the Application of the "Criminal Procedure Law of the PRC", Supreme People’s Court, 2021: Article 60)'''

• Article 40: A defense lawyer may, from the date on which the relevant people’s procuratorate begins to examine the case for prosecution, consult, excerpt and reproduce the case file materials.

• Article 60: People's courts shall consent where defense lawyers apply directly to the people's court to gather or collect evidence from a witness, unit, or individual, and the people's court finds that it is truly necessary, and further, that it is inappropriate or impossible for the defense lawyer to gather to collect it.

'''The right to investigate and collect evidence (Criminal Procedure Law: Article 40; Law of the People's Republic of China on Lawyers: Article 35)'''

• Article 40: A defense lawyer may, from the date on which the relevant people’s procuratorate begins to examine the case for prosecution, consult, excerpt and reproduce the case file materials. Other defenders, with permission of the people’s procuratorate or people’s court, may also consult, excerpt and reproduce the above-mentioned materials.

• Article 35: When a lawyer investigates to collect evidence for a case on his own, he may, on the strength of his lawyer’s practice certificate and the papers issued by his law firm, inquire of the unit or individual concerned about the legal matters which he has undertaken to handle.

'''The right to question witnesses (Criminal Procedure Law: Article 194)'''

• Article 194: Before a witness gives testimony, the judges shall instruct him to give testimony truthfully and explain to him the legal responsibility that shall be incurred for intentionally giving false testimony or concealing criminal evidence. The public prosecutor, the parties, the defenders and agents ad litem, with the permission of the presiding judge, may question the witnesses and expert witnesses. If the presiding judge considers any questioning irrelevant to the case, he shall put a stop to it.

'''The right to object to the written testimony of prosecution witnesses, including the testimony of the police and expert experts (Criminal Procedure Law: Article 192)'''

• Article 192: Where prosecutors, parties, defenders or agents ad litem object to a witness's testimony that has a major bearing on the case verdict or sentencing and the people's courts find that it is necessary for them to testify in court, the witness shall appear in court to testify.
The preceding paragraph applies to people's police appearing in court to testify on criminal circumstances they personally witnessed while carrying out their professional duties.
Where prosecutors, parties, defenders, or agents ad litem object to evaluation opinions and the people's courts find that evaluators need to appear in court, the evaluators shall appear in court to testify. Where upon notice from the people's court, evaluators refuse to appear in court to testify, the evaluation opinion must not be the basis of the verdict.

'''The right to express defense opinions and debate in court (Criminal Procedure Law: Article 198; Law of the People's Republic of China on Lawyers: Article 31)'''

• Article 198: During court proceedings, all facts and evidence relating to case conviction and sentencing shall be investigated and debated. With the permission of the presiding judge, the public prosecutor, the party concerned, the defender and the agent ad litem may express their views on the evidence and the circumstances of the case and may debate with each other. After the presiding judge has declared the conclusion of the debate, the defendant shall be entitled to make a final statement.

• Article 31: Lawyers acting as criminal defenders shall, based on facts and laws, submit materials and opinions proving the innocence of the defendant, mitigating, or exempting the defendant from criminal responsibility in accordance with the facts and laws, so as to safeguard the lawful rights and interests of the criminal suspect or defendant.

'''The right to appeal for a trial of second instance (Criminal Procedure Law: Article 227)'''

• Article 227: If the defendant, private prosecutor or their legal representatives refuse to accept a judgment or order of first instance made by a local People's Court at any level, they shall have the right to appeal in writing or orally to the People's Court at the next higher level. Defenders or near relatives of the defendant may, with the consent of the defendant, file appeals.
A defendant shall not be deprived on any pretext of his right to appeal.

'''The right to file petition for reconsideration (Criminal Procedure Law: Article 252; Law of the People's Republic of China on Lawyers: Article 28 (6))'''

• Article 252: A party or his legal representative or his close relative may present a petition to a People's Court or a People's Procuratorate regarding a legally effective judgment or order, however, execution of the judgment or order shall not be suspended.

• Article 28 (6): Accept authorization to provide non-litigation legal services

'''The right to know the offense of which the criminal suspect is accused (Criminal Procedure Law: Article 38)'''

• Article 38: During the investigation period, a defense lawyer may provide a criminal suspect with legal aid, file petitions and complaints on the suspect's behalf, apply for alteration of the compulsory measures, find out from the investigating organ the offense of which the criminal suspect is charged and the information pertaining to the case, and offer his/her opinions.


=== '''DUTIES OF A CRIMINAL DEFENDER''' ===

'''Duties of the lawyer to the client:'''

1. A lawyer owes a duty to protect the lawful rights and interests of their client. This is found in Article 7 of the ''Lawyers’ Practice Code of Conduct'' (''Provisional''), and Article 31 of the Law of the People's Republic of China on Lawyers.

2. A lawyer must act in the best interest of the client. Article 39 of ''Law of the People's Republic of China on Lawyers'' specifies that a lawyer shall not represent the two parties of one case at the same time. Additionally, Article 50 of the ''Lawyers’ Practice Code of Conduct'' (''Provisional'') provides that when a lawyer handles a matter in which he or she may have an interest, or has a conflict of interest with the client, he or she must not undertake that matter and shall voluntarily offer to withdraw.

3. According to article 38 of the ''Law of the People's Republic of China on Lawyers'', a lawyer shall keep the information that is known by him which the client and other persons are reluctant to disclose confidential.

4. According to article 32 of the ''Law of the People's Republic of China on Lawyers'', after accepting authorization, a lawyer shall not refuse to defend or represent a client without good reasons. However, if the authorized matter violates the law, the client makes use of the services provided by the lawyer to engage in illegal activities or deliberately conceals a material fact related to the case, the lawyer shall have right to refuse to defend or represent the client.

'''Duties of lawyers to judicial authorities'''

1. According to article 3 of the Law of the People's Republic of China on Lawyers, in practicing law, a lawyer must take fact as the basis and take law as the criterion. According to article 40, a lawyer shall not intentionally provide false evidence or threaten or induce others to provide false evidence, or obstruct the opposite party's legal obtaining of evidence.

2. According to the ''Law of the People's Republic of China on Lawyers'' and ''the Measures for Punishing Outraging Lawyers'' and Law Firms for Their Illegal Acts (2010), a lawyer shall not meet a judge, prosecutor, arbitrator or any other relevant staffer in violation of provisions, or affect the handling of a case according to law by a judge, prosecutor, arbitrator or any other relevant staffer by illicit means; a lawyer shall not bribe a judge, prosecutor, arbitrator or any other relevant staffer, instructing or inducing a party to bribe the same, or affecting the handling of a case according to law by a judge, prosecutor, arbitrator or any other relevant staffer by any other illicit means;

a lawyer shall not disrupt the order of a court or arbitral tribunal, or interfere with the normal conduct of litigation or arbitration.

3. According article 41 of ''the Law of the People's Republic of China on Lawyers'', a lawyer who once served as a judge or prosecutor shall not act as an agent ad litem or defender within two years after leaving his post in the people's court or the people's procuratorate. According to the Judges Law of the People's Republic of China and the Public Procurators Law of the People's Republic of China. According to Article 9 of the Provisions of the Supreme People's Court on Several Issues concerning the Implementation of the Withdrawal System of Judges in Litigation Activities, a judge, any other relevant staffer and their spouse, child or parent shall not be agent ad litem or defender in their court.

4. According to article 42 of ''the Law of the People's Republic of China on Lawyers'', lawyers and law firms shall perform their obligations of legal aid according to the state provisions, provide the aided persons with standard legal services, and protect the legal rights and interests of the aided persons.

'''Duties of the Legal Sector in Legal Aid Work'''

In the Notice on Issuing the Provisions on the Legal Aid in Criminal Action, the responsibilities of the public, procuratorate, law, and the judicial organs in legal aid work have been established. The provision regarding criminal defenders and legal aid work are as follows:

1. According to Article 5, when the public security organ or the people’s procuratorate interrogates a criminal suspect for the first time or takes compulsory measures, it shall inform the criminal suspect that he has the right to appoint a defender, and inform him that if he meets the requirements of Article 2 of these regulations, the criminal suspect and his close relatives can apply for legal aid from a legal aid agency. For cases involving state secrets, the criminal suspect should be informed that the application for legal aid should be approved by the investigative agency. The people's procuratorate shall, within three days after receiving materials of the case that is transferred for examination and prosecution, notify the criminal suspect of the right to authorize a defender, and that if he complies with the provisions of Article 2 of these Provisions, he or she or the close relative may apply to a legal aid institution for legal aid; shall notify a victim or the legal representative or close relative thereof of the right to authorize a litigation representative and that, in the case of any economic difficulties, he or she may apply to a legal aid institution for legal aid.

2. According to article 7, public security organs, people’s procuratorates, and people’s courts shall apply for legal aid within 24 hours after receiving legal aid applications from criminal suspects or defendants in custody. Transfer it to the local legal aid agency, and notify the applicant's legal representative, close relatives or other personnel entrusted by him to assist in providing relevant case materials.

3. The people's courts also have the duty to facilitate the implementation of legal aid. In case the time of the court session is rescheduled, the criminal legal aid lawyer shall be notified three days in advance (Article 18); for cases that are not tried in court, a written defense opinion from the legal aid lawyer shall be accepted.

4. Public security organs and people’s procuratorates have the obligation to assist in legal aid procedures. According to articles 10 and 17, if the public security organs, people’s procuratorates, and people’s courts are giving a notice of appearance, they shall hand in the official notice of appearance letter, prosecution opinions, indictments, copies or photocopies of judgments to the legal aid agency. The official letter of appearance shall contain the name of the criminal suspect or defendant, the suspected crime, the place of detention or residence, the reason for the letter of appearance the name and contact information of the contact person of the case-handling agency, etc. Before the conclusion of the investigation of the case, if the undertaking lawyer makes a request, the investigating agency shall listen to his opinions and record the case. If the undertaking lawyer puts forward a written opinion, it shall be attached to the file.

5. The public, procuratorate and legal organs should reduce or exempt the cost incurred by legal aid lawyers for copying case materials.