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Practicing law in China -- A risky profession
The Chinese currently believe that lawyers plead cases for bad people; they oppose the law enforcement department, corrupt the judges and lawyers gain money by cheating. As a result, some people tweaked Shakespeare's line,”The first thing we do, lets kill all the lawyers." Of course, this is not possible but forcing them to face reality is.
Have you not seen the restraints imposed through legislation: the 38th item, 96th item of Criminal Law regulates that when lawyers meet with criminal suspects it is in agreement with and supervised by the police during the investigation period? Lawyers cannot conduct their own investigation while the government is doing so. A lawyer's responsibilities are only limited to the understanding the case, providing legal consultation, applying for bail and representing the accused. Even these pitiable rights may not be granted all the time. Bail is granted to less than one in 10,000 of the accused and lawyers must repeatedly request getting a meeting with clients before even one interview is granted. It is virtually impossible for lawyers to appeal verdicts or sue, even if they are courageous enough to try. Since lawyers do not have confidential access to clients they are unable to defend their clients properly and within the law. The accusation that the laws were written to appease foreigners seems true, since the new laws are even more draconian than the 1979 criminal code.
The Criminal Code item 306, perjury by a lawyer, has landed more than 100 lawyers in prison. A veteran lawyer I spoke with said, that if you want to work in the legal profession, don't be a lawyer. If you are a lawyer, don't choose criminal law. If you are a criminal lawyer, don't collect evidence and if you collect evidence, don't collect witness's statements. If you can't follow all of the above, just check yourself directly into prison. Although this veteran lawyer's words are extreme, they are the truth.
In the eyes of the court, the public prosecutor and the defendant have equal rights, and whether they are guilty or innocent should depend on the evidence. But in reality in this "sports game," the public prosecutor is both the athlete and the referee per se, as only he can investigate the defendant. This has made it meaningless, or even dangerous, for a lawyer to gather evidence. If a lawyer finds the same evidence then there is no point in pleading innocent. But if it is not the same, then it cannot be used because the district attorney's evidence is used as judging criterion.
The number of defense cases has dropped dramatically in Beijing because of this tough situation and because lawyers fear being charged with perjury. Beijing is at the political heart of the nation where laws are more complete, but, still, lawyers are still overly cautious. In poorer areas like where I live, the county magistrate's power is more authoritative than the Constitution. If a lawyer defends criminals, isn't that like walking right into a trap?
I have a lawyer friend who has defended more than 100 criminal cases in 8 years where more than ten people were found innocent, which is an outstanding record for an attorney in China. This high success rate should make her quite famous, but in fact she can't even find work. Nobody dares to hire her. The local public security organization has her on a blacklist, and some say that she will be put in prison sooner or later. On the first New Year of this millennium, this talented female lawyer so devoted to her career that she left the city where she had lived for more than ten years. She left her husband and child and went to an unknown city to continue her lawyer career. Before setting out, her husband wanted to divorce her, her child wanted her to stay, her friends advised her not be a lawyer any more. She said, "I won't give up being a defense lawyer; if I don't plead for others, there will be no one to plead for me in the future. If I give up my profession, there will be no lawyers sooner or later."
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