Chinese Lawyers Having More Rights to Defend Suspects

Since November 24, 2017, the law Lawyers Meeting the Suspects in Custody in a Jail has been promulgated and implemented.This provides a more detailed legal guarantee for Chinese lawyers to exercise criminal defense.

Since the promulgation of the original Temporary Regulation on Lawyers Meeting the Suspects in Custody in a Jail in 2004, some rules are out of date. For example, the narrow scope of attorney's agency, the number limit of lawyers and the inaccuracy of lawyers' relief measures. They had seriously hindered Chinese lawyers from defending the suspects.

The Chinese government has listened to the opinions of the national legal association, some lawyers, experts and scholars and prison workers, and made further amendments to the provisions of Lawyers Meeting the Suspects in Custody in a Jail. Shanghai Nuo Di Law Firm (www.shndlaw.com) notes that the major changes in this revision are mainly reflected in the following aspects:

Firstly, to expand the scope of Chinese lawyers’ agency. Article 4 of the new regulation enlarges the scope of lawyers’ agency. It adds that a lawyer may represent a variety of appeals, non-litigation legal services, legal consultations, write a litigation document and the relevant legal affairs of other documents. It adds a second paragraph in Article 4 that  attorneys for other cases, who need to investigate for evidence in prison, may meet with prisoners.

Secondly, to increase the accessibility of Chinese lawyers to meet suspects.In order to facilitate the meeting of lawyers, Article 3 of the new regulation stipulates that prisons should open their appointment ways for lawyers’ meeting, reasonably arrange the meeting place for lawyers, and facilitate the lawyer to meet and read the case files, etc. Article 4 of it stipulates that the guardian and close relatives of the suspects may entrust a lawyer. Article 8 further refines the primary rules: after receiving the materials listed in Article 5 from a lawyer, the prison hall timely arrange the meeting if complying with the stipulations of Article 4 of this regulation. It shall be arranged at that time if possible. If not, the prison shall state the circumstances and arrange the meeting within 48.It is convenient for the lawyers to meet the suspects after adding the provisions of "The arrangements can be arranged at that time if possible".

Thirdly, to cancel the number limit of Chinese lawyers for meeting.The amendment no longer holds the limitation that the meeting should normally be attended by two lawyers. Article 9 of the new rules stipulate that the suspects in custoday can entrust one or two lawyers. When entrusting two lawyers, they can meet together or separately.A lawyer can bring a paralegal to help with the meeting.

Fourthly,to clearly stipulate that the Chinese lawyers shall not be monitored during the meeting. Paraph.2 of Article 11 of the new regulation stipulates that the defense lawyer shall not be monitored while the suspect is in custody for investigation, prosecution or trial, and the prison shall not send the police to be present.This applies to the case of a lawyer meeting the suspects in prison, who cmmits a new crime or misses a crime charge.

A prisoner's sentence in prison belongs to the execution stage of punishment.To ensure the safety of the prison, lawyers, Paragraph 1 of Article 11 of the new regulation rules that when a lawyer meets with a criminal, the prison can decide whether to designate police to be present according to the case and need.The presence of the police was primarily concerned with security.

Fifthly, to highlight protection of Chinese lawyers professional rights and relief measures. Article 12 stipulates that if a lawyer believes that prisons and staff hinders his or his lawful rights, he or she may apply for protecting lawful rights to the judicial administrative authority where his or her law firm is based, in addition to complain to the jail or its higher level of authority. If the situation is urgent, it may apply to the local judicial administrative authority where it happens for protecting lawful rights.

Research Center of Shanghai Nuo Di Law Firm

April 10, 2018