How to deal with lawyers whose defenders and agents ad litem are equal?

The defendant Zhai Moumou in the original trial endangered public safety in a dangerous way. After the judgment of the first instance, the defendant in the first instance appealed. One of the reasons for the appeal is that the litigation agent entrusted by the plaintiff in the incidental civil action and the defender entrusted by himself are practicing lawyers in the same law firm. The court of second instance has different opinions on this appeal reason put forward by the appellant. One view is that the current law does not explicitly prohibit this situation, and that the fact that the defender and the litigation agent are lawyers of the same law firm does not prevent the parties from claiming litigation rights, because the court is still the main body that ultimately decides the degree of safeguarding the rights and interests of the parties, so this situation naturally does not affect the fair handling of the case; Another view is that whether the parties can enjoy full rights in litigation directly affects the realization of their substantive rights. Although there is no clear stipulation in the current law, the situation raised by the appellant will inevitably affect the full exercise of the parties' right of defense and their claims to legitimate rights and interests to a certain extent.

Comment and analysis

The author agrees with the second opinion.

Judicial justice is an important social justice, and criminal justice is the most important in judicial justice, because it is related to the authority, freedom and life of national punishment. We must establish a strong concept of criminal justice and conscientiously implement this concept in order to safeguard social justice. The concrete operation of criminal justice should not only pay attention to the effective maintenance of public security and social order, but also pay attention to the effective protection of the legitimate rights and interests of individual citizens, especially criminals, and realize the organic combination of social protection and human rights protection, so as to realize the fundamental value pursuit of social justice. Modern criminal justice concept not only pays attention to the protection of substantive rights and interests, but also pays attention to the maintenance of procedural justice. In fact, the realization degree of procedural justice determines the protection degree of substantive rights and interests. As the old saying goes, justice should not only be realized, but also be discovered in a way that people can see.

From the specific protection of litigation rights, the basic connotation of procedural justice includes the equality of prosecution and defense and the full participation of both parties. In this case, the defender and the agent ad litem bear tit-for-tat responsibilities: the defender should protect the legitimate rights and interests of the defendant through full and effective defense, while the agent ad litem should fully express the demands of the plaintiff in the incidental civil action to protect the legitimate rights and interests infringed by the crime. The ultimate goal of these two roles determines that there can be no interest intervention in the specific implementation process. Two lawyers from the same law firm will play these two roles with different functions, which can't stop the reasonable doubts that the parties and the public may have, let alone the equality of the prosecution and the defense and the adequacy of their participation in the litigation. This situation actually deprives or restricts the legal litigation rights of the parties.

Defendant's rights and interests is an important content that must be paid attention to in criminal justice. Effectively safeguarding the defendant's legitimate rights and interests is not only the requirement of basic human rights, but also the embodiment of the humanistic care shown by the powerful machine of the country in the face of isolated individuals, and it is also the inevitable requirement of building a harmonious social relationship. In criminal proceedings, many legitimate rights and interests of defendants are safeguarded by their entrusted defenders. Without a fully trusted defender to safeguard his legitimate rights and interests, the rights and interests of the defendant cannot be fully guaranteed. In this case, whether the defender entrusted by the defendant can protect the defendant's legitimate rights and interests through the trial process, because Byodoin Temple's colleague is the tit-for-tat counterpart, whether this right can be realized and the degree of realization is greatly reduced in the defendant's view. As Beccaria said: A criminal can exclude people he can't trust to a certain extent, which is also in line with the principle of justice.

Judging from the current relevant norms, although this situation is not directly prohibited in the Criminal Procedure Law, the relevant norms are enough to show the attitude towards this situation. Article 39 of the newly revised Lawyers Law on June 28, 2007 stipulates that a lawyer shall not act as an agent for both parties in the same case, and shall not represent legal affairs with conflicts of interest with himself or his close relatives. In this case, the two lawyers are defenders and agents in incidental civil litigation respectively, and they come from the same law firm, so it is inevitable that there are various conflicts of interest. This conflict of interest not only violates the requirements of lawyers' professional norms, but also is not conducive to fully and effectively safeguarding the legitimate rights and interests of the parties. At the same time, the acts that law firms should be punished as stipulated in Article 50 of this Law include "accepting cases with conflicts of interest in violation of regulations". It can be seen that the misconduct in the above cases should also be corrected from the perspective of lawyer industry norms. Lawyers (firms) should still consciously abide by it, and the court, as a neutral, should stop it when it sees it.

The author thinks that the situation of "defense and agency in the same place" that may occur in practice should be corrected in time at different stages of case handling: before the case enters the trial stage, the law firm should take the initiative to understand the entrustment of the other party when accepting the entrustment of the parties, and if the lawyers entrusted by both parties are the same firm, they should take the initiative to avoid the entrustment request of the parties; The court shall examine the entrustment of both parties before the substantive trial of the case. In case of the above situation, the party concerned shall be required to change the entrustment; In the second instance, it is found that the defendant and the representative are in the same place in the court of first instance, and the case should be sent back to the court of first instance for retrial on the grounds that "depriving or restricting the legitimate litigation rights of the parties may affect the fair trial". (lu shan, Intermediate People's Court of Suqian City, Jiangsu Province)