| China's current duty lawyer laws reflect the authorities' inclination to suppress the rights of the defense party. Returning to the laws themselves, the state must appoint a duty lawyer to an accused who hasn't been represented. By interpreting "making an appointment with a duty lawyer" in the Legal Aid Law as meaning that the accused must apply in order to obtain legal assistance, the authorities confuse an interview with a lawyer and a lawyer's intervention in the case, thereby shifting the responsibility of the state to the individual and weakening the minimum safeguard for the right of the accused to legal assistance. Relevant judicial interpretations limit the duty lawyer's right to review files to "consulting". Based on the literary meaning of Article 37 of Legal Aid Law, the principle of equality of arms, etc., duty lawyer should also have the right to "extract" and "duplicate" the case files. Article 14 Paragraph 2 of the Measures for the Work on Legal Aid Duty Lawyers provides that, after confirming that the criminal suspect has voluntarily admitted guilt and accepted punishment, a duty lawyer must sign the recognizance despite his objection to the sentencing recommendation. This is a public declaration of the "witness" function of the duty lawyer, which contradicts the legislative intent of Article 201 of the Criminal Procedure Law and the reform requirement of substantive participation by lawyers in negotiations. Duty lawyer should have the right to refuse to sign the recognizance. Substantive participation should be the basic direction of current reform of the duty lawyer system. |
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