▲ On September 9, 2021, Lao Rongzhi was sentenced to death in the first instance. The Lao Rongzhi case saw the emergence of “occupying-the-spot defense.” (Visual China / Provided) The full text contains a total of 3860 characters, and it takes about 9 minutes to read.
- How to solve the “occupying-the-spot defense” has different views in theory and practice. Some scholars suggest that one possible approach is to allow the lawyer entrusted by the family to meet with the person involved at least once to confirm the person’s true wishes.
- The Criminal Procedure Law has been amended three times in the past, expanding the specific content of the right to defense, but the implementation of each newly added right faces formal obstacles, and the main contradiction is the obstruction and inconvenience of the exercise of rights.
This article was first published in Southern Weekend and may not be reproduced without authorization
By｜Southern Weekend Intern Gu Liangnan
Southern Weekend Reporter Zhai Xingli
Responsible Editor｜Qian Haoping
Occupying-the-spot defense is becoming a frequently discussed topic in the handling of high-profile cases. Similar situations exist from the Hangzhou “nanny arson case” to the “Lao Rongzhi case” and the “Wu Xieyu case.”
In criminal cases, the case-handling authorities occupy defense slots by assigning legal aid lawyers, which leads to the inability of the parties to independently choose their defenders, which is figuratively called occupying-the-spot defense.
Behind the battle for defense positions is the issue of how to protect the right of lawyers to practice. Although the Criminal Procedure Law and the “Two Highs and Three Ministries” have long had regulations, in judicial practice, the right of lawyers to defend is often challenged.
In the field of criminal defense, there used to be the “old three difficulties,” which refer to the difficulty of reviewing files, the difficulty of meeting, and the difficulty of investigation and evidence collection, while the “new three difficulties” are the difficulty of questioning, the difficulty of cross-examination, and the difficulty of debate.
On October 26, 2024, at the academic seminar on “Amendment of the Criminal Procedure Law and Improvement of the Defense System” and the 18th Shangquan Criminal Defense Forum held at Shenzhen University, Professor Han Xu of the Law School of Sichuan University believes that an important reason for this phenomenon is that the acts of infringing on the right of lawyers to defend are almost never substantively pursued.
Some places have already tried to solve it. In mid-October 2024, the Liaoning Provincial Department of Justice, the Provincial High People’s Court, the Provincial People’s Procuratorate, the Provincial Public Security Department, and the Provincial National Security Department jointly issued the “Regulations on Protecting Lawyers’ Right to Practice According to Law.” Tianjin, Shaanxi, Shanxi, Chongqing, Guangdong, Guangxi and other places have also successively issued similar regulations.
In Han Xu’s view, the local issuance of such documents is a positive signal, but protecting the right of lawyers to practice requires solving the problem from the root, “regulating it from the legislative level.”
1 Who has priority?
The “Wu Min case” is another typical case of occupying-the-spot defense.
On April 11, 2024, the Wu Min bribery case tried by the Intermediate Court of Yingtan, Jiangxi Province, was opened, and the two lawyers Wang Chunli and Zhang Qingfang, who were entrusted by the family, were blocked outside the door.
Wu Min was the director of the Standing Committee of the People’s Congress of Ji’an City, Jiangxi Province, before his retirement. On December 22, 2023, the People’s Procuratorate of Yingtan City prosecuted Wu Min to the Intermediate People’s Court of Yingtan City for the crime of accepting bribes.
Wu Min’s niece, Wu Shuting, introduced to the Southern Weekend reporter that when the Yingtan Intermediate Court notified the opening of the court, the family knew that the court had already assigned a legal aid lawyer to Wu Min. During Wu Min’s trial, the Yingtan Intermediate Court assigned 4 legal aid lawyers as Wu Min’s defenders twice. Previously, Wang Chunli and Zhang Qingfang were rejected when they submitted defense procedures to the Yingtan Intermediate Court because there were already legal aid lawyers. After the lawyer withdrew, the court assigned another two local lawyers as Wu Min’s defenders.
Legal aid lawyers also wanted to “give way,” but Zhang Qingfang and others were ultimately not allowed to enter the courtroom to defend Wu Min. This matter caused an uproar after being reported by the media.
This approach mainly lies in the “misinterpretation” of the Legal Aid Law. At the academic seminar on “Amendment of the Criminal Procedure Law and Improvement of the Defense System” and the 18th Shangquan Criminal Defense Forum, Cai Hua, director of Guangdong Xiaofeng Law Firm, talked about this issue.
The goal of the Criminal Defense Coverage and Legal Aid System stipulated in the Legal Aid Law is to ensure that every defendant in a criminal case can obtain effective legal aid.
However, Article 25 of the Legal Aid Law distinguishes between “should” and “may” situations. In criminal cases, minors who have not entrusted a defender, those who may be sentenced to life imprisonment or death, etc., the judicial authorities should notify the legal aid agency to assign a lawyer to act as a defender. The second paragraph also stipulates that in other cases tried under the ordinary procedure, if the defendant does not have a defender, the people’s court may notify the legal aid agency.
In response to the frequent situation in practice where legal aid lawyers are forcibly assigned, Chen Yongsheng, a professor at the Law School of Peking University, analyzed to the Southern Weekend reporter that, in fact, entrusted defense takes precedence over legal aid defense.
The Criminal Procedure Law already has relatively clear provisions on this. According to Article 35 of the Criminal Procedure Law, the prerequisite for the person being prosecuted to obtain legal aid is not only economic difficulties or being a blind, deaf, mute person, a minor, or other special personnel, but also “not having entrusted a defender.”
However, a judicial interpretation has brought new difficulties to the confirmation of the priority of entrusted defense.
In January 2021, the Supreme People’s Court announced the judicial interpretation of the Criminal Procedure Law. Article 51 of which stipulates that after the legal aid agency assigns a defense lawyer to the defendant, if the defendant’s guardian or close relatives entrust a defense lawyer on their behalf, the case-handling personnel should listen to the defendant’s opinions and have the defendant determine the choice of the defender.
Zhang Yu, a partner at Beijing Shangquan Law Firm, believes that this interpretation has actually become the basis for “occupying-the-spot defense.”
He analyzed that based on this judicial interpretation, when the entrusted lawyer requests to intervene in the defense, the court can use the reason that the defendant himself wants to choose a legal aid lawyer, so that the lawyer entrusted by the family cannot intervene in the defense.
Chen Yongsheng believes that this provision confirms that the defense lawyer entrusted by the defendant has priority over the legal aid lawyer, which is a progress, “but the problem is that the rule that the entrusted lawyer is superior to the legal aid lawyer has not been established.”
How to solve the “occupying-the-spot defense” has different views in theory and practice.
One view is that the close relatives should be given the right to independently entrust. Mao Lixin, director of Beijing Shangquan Law Firm, said that the fundamental reason for the emergence of “occupying-the-spot defense” is that the legislative spirit does not recognize that the close relatives of the suspect and the defendant have the right to independently entrust a defense lawyer.
Mao Lixin introduced that, considering that the person being prosecuted is often in prison, not only losing personal freedom, but also their freedom of will is often difficult to guarantee, they may be forced to give up the entrusted defense because of threats, inducements, and deception from the case-handling authorities, or they may voluntarily give up the entrusted defense due to shame, self-abandonment, etc. In order to fully protect the right of the person being prosecuted to defend, it is necessary to give their close relatives the right to independently entrust a defense lawyer.
In this regard, Wang Yinglong, an associate professor at the Law School of China University of Political Science and Law, believes: “Independent entrustment may solve the problem of ‘occupying-the-spot defense’, but in theory, the right to defense is enjoyed by the person himself, and the person’s wishes should also be respected.”
Wang Yinglong believes that the crux of the problem lies in how to confirm the true wishes of the person being prosecuted. One possible approach is to allow the lawyer entrusted by the family to meet with the person involved at least once to confirm the person’s true expression of intent.
2 “Two different things”
Although it shows the characteristics of the dominant role of the judicial authorities, the right of legal aid lawyers to defend is also challenged, which is similar to that of entrusted lawyers.
“The difficulty in exercising rights such as the right to review files and the right to meet is a common problem encountered by lawyers.” Dong Yuqin, a partner at Beijing Dacheng (Shenzhen) Law Firm, had a relatively extreme experience. That time, as a legal aid lawyer, she applied multiple times to obtain nearly two hundred interrogation video discs, but only received 5.
In Dong Yuqin’s view, the right to review files is a statutory right of lawyers, and entrusted lawyers and aid lawyers should be no different and should be effectively guaranteed. But the reality is that not only is the right to review files not guaranteed, but especially synchronous interrogation videos and other audio-visual materials are often not allowed for lawyers to review or copy.
In fact, the first three revisions of the Criminal Procedure Law have gradually strengthened the protection of lawyers’ right to defend.
Chen Guangzhong, a lifetime professor at China University of Political Science and Law, reviewed the history of the legislation and amendment of the Criminal Procedure Law in his papers.
In 1979, the Criminal Procedure Law was promulgated, and the defense methods stipulated included self-defense, entrusted defense, and designated defense.
In 1996, the Criminal Procedure Law was first significantly amended, advancing the time for lawyers to participate in the litigation, allowing suspects to entrust lawyers to provide legal assistance during the investigation stage, changing the previous provision that the defendant could only entrust a defense lawyer during the court trial.
In 2012, the Criminal Procedure Law was revised for the second time, and new provisions were made to solve the difficulty of defense lawyers meeting, expand the right to review files, and exclude illegal evidence. For example, defense lawyers can consult, copy, and copy the case files in the stage of review and prosecution.
In 2018, the Criminal Procedure Law was revised for the third time, establishing the legal aid duty lawyer system.
Chen Shi, a professor at Zhongnan University of Economics and Law, introduced to the Southern Weekend reporter that the three revisions of the Criminal Procedure Law have gradually expanded the scope of defense and improved the content of defense.
According to the data from the Ministry of Justice, starting from 2017, the Ministry of Justice and the Supreme People’s Court deployed and carried out the pilot work of full coverage of lawyer defense in criminal cases. As of September 2021, more than 2,300 counties (cities, districts) across the country have carried out the pilot work, accounting for more than 80% of the total number of county-level administrative regions, and the lawyer defense rate in criminal cases nationwide has reached 66%.
Since 2022, the “Two Highs and Two Ministries” have also carried out the pilot work of full coverage of lawyer defense in the review and prosecution stage.
In Chen Shi’s view, these are all specific manifestations of the progress of the rule of law. But he also emphasized, “The granting and exercise of rights are two different things.”
He further explained that the Criminal Procedure Law has expanded the specific content of the right to defense in the past three revisions, but the implementation of each newly added right faces formal obstacles, and the main contradiction is the obstruction and inconvenience of the exercise of rights. “Many regulations on protecting lawyers’ right to practice have been issued this year, but it is difficult to guarantee them by relying on documents alone.”
On October 26, 2024, the academic seminar on “Amendment of the Criminal Procedure Law and Improvement of the Defense System” and the 18th Shangquan Criminal Defense Forum were held at Shenzhen University. (Southern Weekend Reporter Zhai Xingli / Photo)
3 How to remedy after being infringed?
However, in judicial practice, the right of lawyers to defend will not only be challenged, but even be infringed.
Han Xu cited a hot case as an example. In October 2023, the Honghe Intermediate Court of Yunnan Province opened a trial for a case involving organized crime. Because a judge in the collegiate panel said in a WeChat group to a lawyer, “Those who do evil will inevitably perish,” the lawyers collectively protested and applied for the judge to recuse himself. After the application was rejected, the lawyers planned to apply for a review, but they did not expect that the written notice of rejection of the review application had already been delivered to the lawyers before the review application was submitted. According to public information, the judge’s behavior was not pursued.
In the “Feng Bo case” in Laibin, Guangxi, the extreme situation occurred that the trial had already ended before the defense lawyers entered the courtroom.
On the morning of August 7, 2023, the Laibin Intermediate Court conducted the second trial of the second instance of the case in which the appellant Feng Bo was accused of the crime of participating in a criminal syndicate, fraud, and helping to forge evidence. On the morning of that day, after the two defense lawyers of the appellant Feng Bo arrived at the court in advance, they questioned the court’s requirement that computers were not allowed to be carried into the court during the security check and negotiated with the relevant staff. In the absence of a result of the negotiation, the court announced the opening of the trial, and then the defense lawyers learned outside the court that the trial had ended.
After the incident fermented in public opinion, the final handling result of the Laibin Intermediate Court was to reopen the trial. “This is equivalent to declaring the original trial invalid. However, there is no system of invalidation of litigation behavior in our law.” Han Xu said that France, Italy, and Macau have all established this system.
Starting from the consequences that should be borne for infringing on the right of lawyers to defend, Sun Changyong, a chair professor at the School of Kaiyuan Law of Shanghai Jiao Tong University and vice president of the China Criminal Procedure Law Research Association, believes that the protection of lawyers’ right to defend depends on the remedy for infringement, and a judicial review and judicial remedy system for infringing on lawyers’ right to defend should be established.
Sun Changyong’s suggestion is not unreasonable. In fact, the “Regulations” issued by the Two Highs and Two Ministries in 2015 already explicitly stipulated that the public security, procuratorial, judicial, and security departments, the public security, the national security, and the lawyers’ association should establish a remedy mechanism for lawyers’ right to practice.
Han Xu’s view goes further. He believes that in principle, the law should clearly stipulate which litigation procedures are invalid, that is, “statutory invalidity,” and at the same time, it should also stipulate “substantive invalidity,” and all acts that infringe on the right of lawyers to defend should be stipulated as “substantively invalid.”
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