Chang Zheng: A brief discussion on the effective defense under the plea leniency system

Editor's Note

On October 24, 2021, the 15th Shangquan Criminal Defense Forum was successfully held in Beijing. The forum was jointly sponsored by the National Legal Aid Research Institute of China University of Political Science and Law and Beijing Shangquan Law Firm. The theme of the forum is "High-quality Development of Criminal Defense and Improvement of Legal Aid System". A total of more than 100 experts, scholars, and legal practitioners attended the forum on the spot, with more than 19,000 people watching online in real time.

The following is the speech of Chang Zheng, founder of Beijing Hengning Law Firm and deputy director of the Criminal Procedure Commission of the Beijing Lawyers Association, at the forum, which was compiled and published for everyone!

Chang Zheng Founder of Beijing Hengning Law Firm Deputy Director of the Criminal Procedure Commission of the Beijing Lawyers Association

Distinguished experts, fellow lawyers, good afternoon! Thanks to the invitation of the organizers, I have this opportunity to learn and communicate with you. At the same time, congratulations on the 15th anniversary of Shang Quan Law Firm! As a professional criminal defense office, it has undergone 15 years of development, which is not easy. This reflects the love, dedication and persistence of a group of people for criminal defense, and also wishes That ShangQuan Law Firm will go better and better on the road of criminal defense in the future.

The theme of this unit is the effective defense of the plea leniency system, which is also a point in the research between me and Mr. Fan Chongyi during my doctoral studies in recent years. Due to time constraints, some of the content is no longer fully discussed.

On this issue, the experts in front of me just now have talked very deeply from a macro perspective, a micro perspective, and even a more specific one, such as the signing of a duty lawyer on a plea affidavit, and I have learned a lot.

With regard to effective defence, I would like to focus on four main aspects. First, what is the significance of effective defense under the plea leniency system; second, how should the standards for effective defense under the plea leniency system be formulated; third, the conditions for the realization of effective defense under the plea leniency system; and fourth, the method of realizing effective defense under the plea leniency system.

First of all, the significance can be considered from three aspects. At the first level, we are studying the significance of a system from a large macro level, or how an industry develops, and we should focus on the trend and look at the trend trend from a strategic perspective, so as to gain a deeper understanding of the system. The national "14th Five-Year Plan" proposes high-quality development, which is implemented in the field of criminal defense, which is the quality and effectiveness of defense. Such a reference is obviously in line with the context, and its significance is self-evident.

At the second level, the plea leniency system began to be trialed in 2016 and was officially written into the Criminal Procedure Law in 2018, and the data show that the application rate of plea leniency has reached more than 80%, and in some places it has even reached more than 90%. How to achieve fairness and impartiality in these cases and how to guarantee them are obviously issues that we should pay attention to. Therefore, it is very necessary to talk about the effective defense of such cases.

At the third level, lawyers, as one of the service industries, must of course pursue effective defense from the perspective of the requirements for providing legal services. The development of criminal defense has gone from scratch, and now it is necessary to talk about the issue of from a defense to a quality defense, which is also in line with effective defense.

Secondly, I would like to address the question of criteria for an effective defence. Just now, my brother Jingkun also said that the effective defense system originated in the United States and is an imported product in China. Nor does the United States define it from the effective defense itself, but from the invalid defense. In the process of writing papers, I have also read many scholars' discussions on the criteria for effective defense recognition. Of course, what is the difference between effective defense and effective defense, in fact, can be studied in depth.

There is no real effective defence system in our country. However, judging from the reality of criminal defense in our country and the effective services that lawyers can provide, I think that the standard of effective defense in the future may be examined from the perspective of due diligence and favorable results, and the process plus results may be more in line with the effective defense standards under our system.

Specifically, four elements are involved. The first element is people. This person is a lawyer, and first of all, if a lawyer is qualified and competent, this is a basic criterion. Of course, to achieve a truly effective defense, the requirements for lawyers may not only be competent and qualified, but also have high requirements for their professionalism, knowledge, technology, skills, and so on.

The second element is the thing. What does it mean? fact. In order to achieve an effective defense under the plea leniency system, as a lawyer, you must first understand clearly what the facts are. When the duty lawyer signs the plea affidavit, in many cases, he does not understand the facts of the case, and without reading the case file, he is notified to witness the signature, which is obviously difficult to achieve an effective defense, so the facts are the basis in the defense.

The third element is the result. Of course, judging an effective defense cannot be based on consequentialism alone. Because in our current criminal defense, if we look at the results, our results will not feel valid. However, it should also be one of the factors. Under the plea leniency system, we should not only pay attention to the result of a leniency or mitigated punishment after sentencing consultation, but also pay attention to the non-criminal treatment, that is, under the plea leniency system, lawyers can also strive for non-prosecution for criminal suspects. We need to pay attention to this. Of course, the realization of the result is inseparable from the determination of the defense plan, in plea cases, before the prosecution and defense consultation, the defense lawyer needs to fully communicate and discuss with the criminal suspect on the defense plan.

The fourth element is also more important, that is, the issue of lawyers' professional ethics.

Third, briefly talk about the conditions for effective defense under the plea leniency system in practice. There are two main levels, one is external conditions, and the other is internal conditions. External conditions refer to the legislative system and the judicial system, and legislation is how to establish an effective defense mechanism, which we do not have now, and may be established in the future. The judicial level is to say that in order to achieve effective defense under the plea leniency system, it is certainly not only relying on lawyers, under the plea consultation mechanism, the lawyer's defense model has shifted from confrontation to consultation, under the consultation mechanism, our opponents must cooperate, and the procuratorial organs and courts must also be able to provide support for lawyers to achieve effective defense and consultative defense. This is a judicial system support.

The internal realization condition is the lawyer himself, including professional skills and so on. The transformation of skills may shift from the training of cross-examination skills that we used to focus on to the improvement of communication, negotiation, negotiation skills, but also to improve our own professionalism. In the morning, Teacher Fan said that there is no change in the understanding of lawyers for participating in the plea of guilt and punishment, the pursuit of legal fairness and justice is an abstract concept, how to achieve fairness and justice, sometimes, to achieve the balance of several parties, the result of the case handling can finally resolve social contradictions and get effective solutions, which is fairness and justice.

Finally, with regard to the implementation method, there are simply three levels. First, establish a defense mechanism; second, improve the legal aid system; third, build defense standards and guidelines.

Under the consultative defense, the defense mechanism should be improved, and I believe that an independent plea leniency consultation procedure should be established. Under this independent procedure, a mechanism for equal, effective and substantive consultation between prosecution and defense should be established, and at the same time, such as the system of discovery of evidence, the system of audio and video recording, etc. should also be supported and improved.

For the improvement of the legal aid system, the main force participating in the plea bargaining system in practice is still the duty lawyer, but I personally advocate that after the independence of the plea leniency system, its initial stage should be at the review and prosecution stage, and at the same time, the defense lawyers involved in admitting guilt and accepting punishment should be promoted, and the transformation of duty lawyers into legal aid lawyers should be promoted to achieve full coverage of the defense of lawyers in plea cases.

Finally, the construction of standards and guidelines will make the implementation of effective defense evidence-based, and the standards will be more operational.

The above statement is my immature thinking, and I invite you to criticize and correct the inappropriateness. Thank you!

THE END