Existing Problems and Strategy of
the Criminal Defence in China
Xu LanTing
Defense is a series of actions that criminal suspect, defendant and their defend
attorney refute and defend according to the accusation by the accusant. The right to be
defended is a most basic and important right entitled to the defendant in the criminal
proceedings. The criminal defend system, as an important aspecgt in the legal systems
of the criminal proceedings of the modern rule-by-law countries, reflects the status of
a country’s democracy and human rights and is established by the legislation of every
country. Moreover, the basic principle in the actions penal that the accused is entitled
to be defended has been ascertained in the International Covenant on Civil and
Political Rights established by the UN1 and elaborated in the Basic Principles on the
Role of Lawyers passed at the 8th Session of the UN’s Meeting on Preventing Crime
and Treatment on Criminals 2 , thereupon an integrated minimum international
standards on criminal defend systems comes into being.
In our nation, as a basic system in criminal proceedings, criminal defend system
has been established by the Constitution, the Criminal Procedures Law and the Act on
Lawyer, especially the new Criminal Procedures Law enforced in 1997 marks a
further progress in the legislation of criminal defending system. However, until now,
the status of our nation’s criminal defend is not satisfactory which can be indicated by
a most simple index that the defending rate that defense lawyers appear in court is
very low. Even to say, the environment of criminal defense is deteriorated rather than
improved. Why in the process of establishing a rule-by-law nation, the development
of criminal defense does not accord with the modernization of legal system? What’s
the problem of our nation’s defense system? As for these problems, what shall we do?
This thesis planes to probe into the above problems.
一、Problems Existed in Criminal Defense in China
The low defending rate of criminal cases and that lawyers are reluctant to
undertake criminal case show that the issues existing in our nation’s criminal defense
is complicated and multi-aspect.
（一）The problems analyzed at the judicial level

Director of Criminal Committee, Beijing Lawyer Association.
The 1984/50 Resolution of the UN Economic Council
2 The Decision passed at the 8th Session of the UN’s Meeting on Preventing Crime and Treatment on Criminals.
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Judicature, as a series of actions during the enforcement of laws by relative
executing organs, must be conducted in accordance with the stipulations of relating
laws or acts. However, in the aspect, a number of organs that handle cases act by the
indications of their internal departments and the judiciary explanations by every organ
contradict laws or acts, which causes the relating stipulations null and the exertion of
the legitimate rights to be defended by lawyers difficult.
1、The right of the lawyers to meet with their clients is like to be nominal. The
article 96 of the Criminal Procedures, Regulations on Issues during the process of
enforcement of Criminal Procedures Law made by the six ministries and commissions
and the relative explanations on laws or acts by the Supreme Court, the Supreme
Procuratorate and the Public Security Ministry all stipulate that lawyers are entitled to
meet with the criminal suspect and the defendant in custody. Except the case
involving State secrets, the lawyer need not obtain the approval of the investigation
organ and the relative organ must arrange the meeting in 48 hours since the
application by the lawyer for meeting. Differently, the relative organ must arrange the
meeting in 5 days in the special case such as that involving gangdom. But in fact, the
investigation organ usually does not arrange the meeting with excuses that the case
involving state secrets, the case is special or the meeting need to be approved by the
competent organ, or arranges the meeting but unreasonably limits lawyer’s right to
meet with the criminal suspect, such as strictly limiting the time or times of meeting,
sends its people to be present at the meeting, or record or kinescope the meeting etc.
2、The investigation and collection of evidence by defense lawyer is confronted
with difficulties. The article 37 of the Criminal Procedures Law stipulates the
investigation and collection of evidence by defense lawyer, that is, Defense lawyers
who collect information pertaining to the current case from the witnesses have to get
the consent of the witnesses, and if they plan to collect evidences from the victim,
they have to get the consent of the competent organ or the victim. But in practice, it
is ordinary that witnesses don’t corporate in the investigation or collection, and the
competent organ does not approve the collection of evidences by the lawyers from
the victim or the victim does not consent with the collection. When facing these
problems, defense lawyers will be at the end of their wits. “Such strict limitation on
lawyers’ right of investigation essentially makes the right to be defended
impracticable and collecting fact and evidence becomes impossible.”
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3、The defense lawyer is facing difficulties in consulting judicial documents. The
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The Research on Problem and Countermeasures on the Implementation of Criminal Procedures Law, Fan
ChongYi, China People’s Public Security University Publication, 2001, P106
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article 36 of the Criminal Procedures Law stipulates that the defense lawyers may,
from the date on which the People's Procuratorate begins to examine a case for
prosecution, consult, extract and duplicate the judicial documents pertaining to the
current case and the technical verification material, and “Defense lawyers may, from
the date on which the People's Court accepts a case, consult, extract and duplicate the
material of the facts of the crime accused in the current case.” But in judicature
practice, the rights necessary in the lawyer’s practice is strictly limited. In the period
of examination of a case for prosecution, People’s Procuratorates of many regions
require lawyers get the approval from the competent organ if they want to consult the
judicial documents, or don’t permit lawyers to consult with the excuse that the case is
involved in State secrets, or refuse the consultation by reason that the duplicating
machine doesn’t work. Even if the lawyer gets the permission to consult the
documents, only those published and inessential judicial documents and technical
verification material are available. While after the People’s Court accepts the case,
although defense lawyers are entitled to consult, extract and duplicate the material of
the facts of the crime accused in the current case, yet since the duplicates of major
evidence attached to the case that the People’s Procuratorate transfers to the People’s
Court is not all the evidences, therefore, defense lawyers can not get all of the judicial
documents including those favorable to the defendant.
4、The defense lawyers’ self-security is challenged. Both the article 306 of the
Criminal Law and the Criminal Procedures Law stipulate that lawyers shall not
intentionally give false evidence. This prescription is reasonable, but leaving defense
lawyers at stake and the article 306 makes it possible that defense lawyers facing
with danger at any moment when defending for the criminal suspect or the defendant.
After the enforcement of these two laws, defense lawyers are often falsely arrested
or taken into custody by the procuratorate organs. That defense lawyers’ security is
facing challenge impairs lawyer’s public image and weaken lawyers’ enthusiasm to
undertake criminal cases. This causes panic in defense lawyers and some defense
lawyers even declare not to defend criminal cases.
5、Besides, there are many problems such as applying for a guarantor pending
trial (most of the criminal suspect or the defendant are in custody and defense
lawyers’ applications for guarantor pending trial are seldom approved), or defense
lawyers’ defending opinions are seldom accepted ( although defense lawyers provide
an excellent defense of not-guilty, yet the verdicts of not-guilty is few and the rate of
not-guilty defense is very low etc.
（二）The problems analyzed at the legislative level
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Compared with the countries with advanced legal system, the development of
our nation’s nomocracy modernization needs a long time. Although our nation’s
criminal defense system has achieved a great progress in the new Criminal Procedures
Law of 1997, yet compared with the minimum international standards established in
the international covenants signed by our nation such as the International Covenant on
Civil and Political Rights of the UN and the Basic Principles on the Role of Lawyers,
the new Criminal Procedures Law of 1997 needs to be considered and improved.
1 、 The status of defense lawyers in the litigation during the period of
investigation. The article 96 of the Criminal Procedures Law stipulates that after the
criminal suspect is interrogated by an investigation organ for the first time or from the
day on which compulsory measures are adopted against him, he may appoint a lawyer
to provide him with legal advice and to file petitions and complaints on his behalf.
During the period of investigation, the criminal suspect may appoint defense lawyers
to provide legal advice in advance. But there is no explicit prescription on the status
of the defense lawyers in the litigation during the period of investigation. This blur in
legislation causes the right of defense lawyers to provide legal advice in advance can
not be implemented or be safeguarded.
2、Compared with the previours legislation, the present legislation on the right of
defense lawyers to consult the judicial documents even retrogresses. In order to
reduce verdicts before the court session and to introduce into the principle of one bill
of prosecution, the new Criminal Procedures Law of 1997 stipulates that when the
procuratorate organ transfers the case file to the People’s Court, it need only to
provide the bill of prosecution and the attached list of evidence and a list of witnesses
as well as duplicates or photos of major evidence and not all of the case file need to be
transferred. This stipulation reduces the opportunity of the judge to get evidence, and
at the same time, limits defense lawyers’ right to consult the judicial documents
during the period of trial which makes the defense lawyers more strictly deprived and
limited to consult the case file than the stipulation of the Criminal Procedures Law
before amended.
3、The limitation of legislation on the investigation and evidence collection by
defense lawyers is excessive. As for the investigation and evidence collection by
defense lawyers, the article 37 of the Criminal Procedures Law stipulates that
Defense lawyers may, with the consent of the witnesses or other units and individuals
concerned, collect information pertaining to the current case from them. With
permission of the People's Procuratorate or the People's Court
and with
the
consent of the victim, his near relatives or the witnesses provided by the victim,
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defense lawyers may collect information pertaining to the current case from them. The
article 44 of the Judiciary Explanations by the Supreme Court stipulates that when
defense lawyers collect information pertaining to the current case from the witnesses
or other units and individuals, if they can not get the consent from them and apply to
the People’s Court for collecting or obtaining the material, and if the People’s Court
thinks it is necessary, the People’s Court should accept the application. From the
above stipulations, we can see that although the present law stipulates the defense
lawyers have the right to investigate and collect evidence, yet they have to get the
consent from the person or the unit investigated and get the permission from the
People’s Procuratorate. Therefore, defense lawyers’ right to collect and investigate
evidence is substantially deprived. And how can defense lawyers collect the favorable
evidence for the defendant by this limited right ?
4、The legislation does not prescribe the exemption of defense lawyers when they
undertake the case. The exemption of defense lawyers when they undertake the case
means that defense lawyers’ action and speeches during the period of litigation will
not be prosecuted according to stipulations of laws. This is a basic right explicitly
regulated in the Basic Principles on the Role of Lawyers, but there is no such
prescription in our nation’s laws. And on the other hand, the article 306 of the present
Criminal Law stipulates the crime that the defender, law agent destroys, falsifies
evidence, threaten or lure witnesses to contravene facts, change their testimony or
make false testimony. The principal part of this accusation is defender and law agent
shouldered by lawyers. Undeniably, this is distinct discrimination in legislation.
（三）The problems analyzed at the rule-of-law process level
Criminal defense, same with the systems of whole criminal procedures, is a
litigation system for protecting human rights of the defendant. It is deeply rooted in
the Western political culture and the construction of legal system. Even if our nation
treats the establishment of a rule-by-law country as the aim of the development of the
society during the process of constructing a modernized socialism, but it is undeniable
that nomocracy is totally against our nation’s traditional culture. As the criminal
litigation system is concerned, due to the cultural tradition of the departmentalism of
nation existing in our nation’s history for a long period and the influence by the
ideology of ruling by proletariate after the erection of our country, the valuation of
criminal litigation lays emphasis on punishing crime. Therefore, the ideology that
criminal litigation is to protect the human rights of the criminal suspect and the
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defendant is difficult to be accepted by the society in a short term. Thus, it is
unavoidably that criminal defense is treated as a system to protect the bad man who
commits a crime and is resisted unconsciously in the judicial practice.
During the process of nomocracy of our nation, since our partial understanding
on criminal defense and even the whole criminal litigation system, the orientation of
the whole legislation is not accurate which, as the legislation is concerned, causes the
unsatisfactory result of the design of criminal defense system no matter in the
particulars of enforcement or in the orientation of the whole system.
In short, the problems now existing in our nation’s criminal defense is
complicate and multi-aspects. Execution of law in judicature is not strictly compliance
with the relative stipulations which cause the original intention of legislation not to be
practical. And in legislation, it shows that the system itself is not consummate. But in
the author’s opinion, the most important and deepest problem is how to understand
and treat the value of the system to protect human right in criminal defense and how
to enforce the criminal defense system in the reform of whole judicial system.
二 、 The countermeasures for solving the problems in the
criminal defense
We have analyzed simply the existing problems in our nation’s criminal defense
from several aspects and pointed out the crux that causes these problems is the
understanding and orientation of the criminal defense system, the criminal procedures
system and even the reform of the whole judicial system. The following is some
advice on solution of these problems by clearing this crux.
The criminal defense system is the basic system in the modern criminal litigation.
The evolution history of criminal litigation can be treated as the history of expanding
and strengthening criminal defense system4. The modern criminal litigation is also be
deemed as an act to protect human rights (including protecting the rights of the
criminal suspect, the defendant and the victim. But the most primary purpose of the
modern criminal litigation is to protect the human rights of the defendant and limit the
power of prosecution by the politic body to violate against the defendant’s human
rights.). And criminal defense system is the very proof to protect the defendant’s
human rights during criminal litigation. Only by taking this as the goal of the criminal
defense and even the whole criminal litigation system, and changing idea that
criminal defense is to protect the bad man and the whole criminal litigation system is
4
Creation and Development: the Compendium on Evolution of Criminal Defense System, Xie Youping, Legal
Science, the first periodical of 2002
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a tool for the country to hit crimes, can we build up the criminal litigation system on
this solid base that everything is ruled by law and experience the fascinate eloquence
in the criminal defense.
Of course, the research and solution to the problems eventually shall be put
into practice rather not just a theory. Knowing the crux of our nation’s criminal
defense system does not mean that all the problems in criminal defense are readily
solved. When we change the conception, we need to find the practical
countermeasures and actions. With a view to the transition of criminal defense and
even the whole criminal litigation system in our nation’s rule-by-law process and
the complication of this problem in the social life, we have to reform the criminal
defense system by stages.
（一）The provisions for the criminal defense in Chinese present legislation
shall be adequately put into judicial practice.
No matter how much advice or opinions on criminal defense, that functioning
in the judicial practice is still the present legislation. Therefore, the most practical
and real countermeasure on the problems of our nation’s criminal defense is to put
the present legislation into effect. This can improve greatly the status of our
nation’s criminal defense.
The work in this period should mainly be done by the judicial organs by
strictly executing the relative laws. As for the above mentioned problems
concerning the judicature, in practice, the judicial organs shall protect the right to be
defend in criminal cases endowed by law. For instance, protecting defense lawyers’
right to meet with the criminal suspect or the defendant during the period of
investigation and the period of examination, guaranteeing the right of criminal
defense lawyers to consult the judicial documents, exerting defense lawyers’ right to
investigate and collect evidence with the assistance of the procuratorate organs and
the trial organs, or in the entire litigation process, protecting defense lawyers’ right
not to be falsely accused of crimes such as evidence falsification.
To put the right of criminal defense endowed by legislation into practice, some
other matters shall be noticed. First, when the relative supreme judicial organs
make their own judicial explanations, they shall abide by the original intention of
legislation of the Criminal Procedures Law which is one of the basic laws in our
nation’s criminal litigation system. Secondly, the judicial explanations of every
supreme judicial organ shall correspond with each other, so as to avoid
contradiction among them.
2、The judicial organs shall comply the stipulation of laws during their practice
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rather not the administrative guidance of the superior judicial organs.
3、Defense lawyers shall improve their diathesis and correctly undertake the case
complying with laws. Facing the present unfavorable environment in the defending
process, lawyers should accept various challenges, overcome the bad ethos and
scrupulously abide by the ethics and disciplines of lawyers during the process of
criminal defense.
（二）Carrying out the reform of the criminal defense legislation based on
the relative international covenants standards
After the Second World War, the criminal defense system of the world tends to
be democratized and civilized which promotes a common and popular international
criminal defense pact come into being. At present, it has been a principle that the
criminal suspect and the defendant are entitled to be defended, which is stipulated in
the UN’s International Covenant on Civil and Political Rights 5and elaborated in the
Basic Principles on the Role of Lawyers passed at the 8th Session of the UN’s Meeting
on Preventing Crime and Treatment on Criminals6. These international standards of
criminal litigation provide the minimum safeguard for the criminal suspect and the
defendant in criminal defense. Our country, as a nation who signed on the Covenant
and the Basic Principles, has reformed the criminal defense system in the legislation
of criminal procedures 7 . But in many aspects, the enforcement is not effective
completely which causes the legislation on criminal defense system does not keep up
with the requirement of the minimum standards of the relative international pacts.
Thus, in the future amendment of the criminal litigation legislation, our nation shall
pay attention to further strengthen the enforcement of criminal defense so that the
relative stipulations of our nation will accord with the international standards.
Taking the stipulations of the Covenant and the Basic Principles as standards,
let’s analyze the legislature reform on criminal defense.
1、The time that criminal defense lawyers participate in the criminal case and
their status during the period of investigation. The article 14 of the Covenant
stipulates that (ii) has enough time and opportunity to prepare their defense and
contact the lawyer that he chooses. The article 1 of the Basic Principles stipulates that
defense lawyers may, at every stage of criminal litigation, provide defense for the
accused. The article 5 stipulates that the government of every nation shall make sure
that the competent organs tell immediately the arrested, the detainee or the defendant
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6
7
the Covenant for short in the following
The Basic Principles for short in the following
Analyzing Our Country’s Criminal Defense System by the International Standards, Liu Mei, Shi YaFen, China’s
Lawyers, the 4th periodic of 2003.
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that he has the right to choose by himself a defense lawyer to provide legal advice for
him. The purpose of the above stipulations is to make defense lawyers to provide
legal advice in criminal litigation as soon as possible. And when the criminal litigation
starts up, defense lawyers may defend for the accused in time. But the article 33 of
our country’s Criminal Procedures Law stipulates that a criminal suspect in a case of
public prosecution shall have the right to entrust persons as his defenders from the
date on which the case is transferred for examination before prosecution. A defendant
in a case of private prosecution shall have the right to entrust persons as his defenders
at any time. Thus, in the public prosecution, defense lawyers of our nation can only
participate in the litigation in the period of examination before prosecution and in the
period of investigation, they have no the right to participate in the case which does not
accord with the requirement “every stage of criminal litigation” by the Basic
Principles. Therefore, during the future legislature amendment, it is advised that the
status of defense lawyers who provide legal advice in the period of investigation shall
be ascertained, so that the criminal suspect can entrust defense lawyers in time at the
beginning of criminal litigation and avoid illegal conducts such as extortion of
confessions by torture, collect evidence in time, assist the exertion of the right of
criminal suspect and protect his legal rights.
2、The legislation on the defense lawyers’ right to meet with the criminal suspect
or the defendant shall be improved. As for the meeting right, let’s analyze in two sides.
Firstly, the meeting time. The article 7 of the Basic Principles stipulates that the
government of every nation shall make sure that the arrested or the detainee, no
matter whether they are accused of crime, may have the opportunity to contact a
lawyer immediately. And no matter what the crime is, the meeting shall not exceed 48
hours from the time of being arrested or detained. But the present legislation of our
nation stipulates that after the criminal suspect interrogated by an investigation organ
for the first time or from the day on which compulsory measures are adopted against
him, he may appoint a lawyer. Furthermore, if defense lawyers want to meet with the
criminal suspect, the concerned organ shall arrange the meeting in 48 hours. But in
fact, since there is no stipulation on the investigation organ’s duty to inform the
criminal suspect of the above rights and the criminal suspect usually don’t know his
right to appoint defense lawyer from the day on which compulsory measures are
adopted, the meeting time of defense lawyers of our nation with the prosecuted does
not accord with the stipulations in the Basic Principles. Secondly, the confidentiality
of the meeting. The article 8 of the Basic Principles stipulates that the arrested, the
detained or the persons in custody shall have opportunity, enough time and
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convenience to meet or negotiate with defense lawyers immediately and confidentially,
and without wiretapping, or any inspect. It also stipulates that this negotiation may be
seen but not be heard by the tipstaff. That is, the meeting of defense lawyer with the
party can be seen while not be heard. But the article 96 of the Criminal Procedures
Law of our country stipulates that when the lawyer meets with the criminal suspect in
custody, the investigation organ may, in light of the seriousness of the crime and
where it deems it necessary, send its people to be present at the meeting. And in
practice, the competent organ usually sends its people to be present at the meeting.
Therefore, the implementation and stipulation of the present legislation weaken
seriously the function of the right to meet with defense lawyers. In the legislation
reform on the meeting right, we shall use for reference the stipulations on the meeting
right and the meeting time of the relative international pacts.
3、The legislation on consulting judicial documents by defense lawyers shall be
improved. The article 21 of the Basic Principles stipulates that the competent organ
has the duty to make sure that defense lawyers have enough time to consult relative
documents, files or records owned by them. The international standard of criminal
defense is defense lawyers can consult “the relative documents, files or records owned
by the competent organ”, that is, all of the materials pertaining to the case. But the
Criminal Procedures Law of our country limits the materials and stipulates that
defense lawyers may consult judicial documents pertaining to the case and the
technical verification materials during the period of examination before prosecution
and may consult the materials of the accused case fact during the trial period.
However, no matter the judicial documents and technical verification materials or the
materials of the accused case fact, are not all the materials pertaining to the case
owned by the competent organ which unbalance the prosecutor and the prosecuted.
This stipulation on consulting judicial documents by the new Criminal Procedures
Law of 1997 limits the materials that defense lawyers can consult, compared with the
old Criminal Procedures Law, which does not accord with the purpose of the
amendment to strengthen the right to be defended and actually contradicts with the
international standards of defense standards. The defense offered by defense lawyers
is to provide defense according to the facts and evidence of the case. Consulting
judicial documents is an important channel for defense lawyers to correctly and
comprehensively understand the fact and evidence of the case and without this right,
the unbalance between the prosecutor and the prosecuted will be increased and the
right to be defended of the criminal suspect or the defendant will be weakened.
Therefore, in the future amendment of the criminal procedures law, we have to settle
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the retroversion on the defense lawyers’ right to consult judicial documents during the
trial period stipulated in the Criminal Procedure Law of 1997. And on the other hand,
compared with the international standard, we have to expand the right to consult
judicial documents of defense lawyers, in order that defense lawyers may understand
the fact and evidence of the case comprehensively.
4、protection on criminal defense—principles when criminal defense lawyers
implementing their duties. Civil and criminal exemption shall be given to defense
lawyers so that defense lawyers can provide defense service and lessen their burdens
when undertaking the case. The article 20 of the Basic Principles stipulates that the
relative speeches during defense or speeches when defense lawyers are in court,
tribunal or other administrative organs for defending the party shall be exempted from
civil and criminal accusation. But there is no relative or similar stipulation in our
nation’s criminal legislation. And the article 306 of the Criminal Law even stipulates
the crime that the defender, law agent destroys, falsifies evidence, threaten or lure
witnesses to contravene facts, change their testimony or make false testimony. This is
discrimination on defense lawyers in legislation and in practice. And it is usual that
defense lawyers are suspect of the above crime and are detained, arrested or
condemned which hurt defense lawyers’ activity to provide legal advice and impact
the development of our nation’s criminal defense. In order to improve our nation’s
criminal defense system, strengthen their function of defense and protect their rights,
the article 306 of the Criminal Law shall be abolished and at the same time, the
exemption principle of defense lawyers during undertaking the case shall be
established.
5、On the other hand, in legislation, some concrete countermeasures during
criminal defense shall be noticed, including the presenting right of defense lawyers
when the criminal suspect or the defendant is interrogated for the first time, the
system of showing evidence pertaining to the case and strengthening the legal
assistance, so as to consolidate defense right of criminal defense lawyers and to
balance the prosecutor and the prosecuted.
（三）The environment of the reform of whole criminal litigation system and
even the judicial system reform
Any stipulation is not independent from each other and constitutes an integrated
system with the whole legal system that the stipulation is affiliated with and is
influenced by the environment of judicial system, so is the stipulation of our nation’s
criminal defense. The problems of the criminal defense system is not only that of the
defense system itself, but also that the whole criminal litigation system has to face and
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is directly pertinent to our nation’s present judicial system. Therefore, we can not
expect the countermeasures on criminal defense are enough to solve the plight that
our nation’s present criminal defense is confronted with. To clear the theories and
legislation of criminal defense and carry them out in practice, we need a rule-by-law
environment and have to improve the whole system of the criminal procedures law.
Facing the plight of our nation’s criminal defense system, we, on one hand, have
to solve the problem by relative measures. And on the other hand, we have to
accelerate the reform of whole judicial system under the environment of the reform on
the whole judicial system and by improving criminal litigation. We must give up the
idea to accomplish the task in an action or complaint. The only method for the
criminal defense is to study the problem, keep pace with the times and implement the
reform under the guidance of the principle of building up a socialized rule-by-law
country.
We are pleased to find that our country has taken measures to amend the
Criminal Procedures Law and the key point of which is strengthening defense
lawyers’ defending right and the protection on human rights of the criminal suspect
and the defendant. We are confident in the re-amendment of the Criminal Procedures
Law.
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