In people's impressions or film and television works, professional lawyers are the best defenders of the law, and they either talk endlessly, quote scriptures, or be passionate. However, in reality, it is not only professional lawyers who do defenders in court, other ordinary people and non-legal professionals can also be defenders, and the current laws in our country have no specific provisions on who can be defenders, but the law makes specific provisions on who cannot be defenders.
Article 40 of the Interpretation of the Supreme People's Court on the Application of the Criminal Procedure Law of the People's Republic of China, adopted by the 1820th meeting of the Adjudication Committee of the Supreme People's Court on December 7, 2020, stipulates that the people's courts shall fully guarantee the defendant's right to a defense in accordance with law when adjudicating cases. In court, in addition to exercising his or her own right to defend, the defendant may also retain a defender to defend himself. However, the following eight categories of persons may not act as defenders.
First, people who are being sentenced or are on probation or parole. This is easy to understand. A person who is in the process of enforcing a sentence or who has been suspended, or who is on parole, is himself a criminal and naturally cannot provide a defense for others.
Second, persons whose personal freedom has been deprived or restricted in accordance with law. For those who are serving sentences in prison, it is natural that they cannot go to court to provide a defense for others, but for some people who are under residential surveillance or whose personal freedom is restricted, although they can come out and move around, they cannot go to court to provide defense for others.
Third, persons who have been dismissed from public office or whose lawyers' or notaries' certificates of practice have been revoked. "Dismissal from public office" means that those who have engaged in public service work, including government organs, state-owned institutions, state-owned enterprises, etc., have been dismissed from public office; those who have been dismissed from public office are bound to violate certain laws and regulations or party and government discipline, and such personnel are not suitable for legal defense; and those who have been revoked their lawyer qualifications often have serious violations of laws or violate lawyers' professional ethics, and they are also unable to be defenders.
Fourth, current employees of people's courts, people's procuratorates, supervision organs, public security organs, state security organs, and prisons. These persons, if they act as defenders, may use their position or authority to exert influence on prosecutors and court trial personnel, thereby influencing the fairness of justice or court trials, and therefore they cannot be defenders.
Fifth, people's assessors. Why can't he be a defender? Originally, people's assessors were citizens who were created in accordance with the law in accordance with the "People's Assessors Law of the People's Republic of China" and held the same duties as judges in the court's trial work, and were responsible for understanding and handling the facts of the case. If he is also a defender, he loses the fairness and impartiality of the law.
Sixth, those who have an interest in the outcome of the trial of this case. This is easy to understand, if he is a defender, he may affect the court's fair and just judgment through private activities or court activities.
Seventh, foreigners or stateless persons, this is easy to understand and does not need to be described in detail.
Eighth, people who are incapacitated or have limited capacity. For example, children and adolescents who are incapacitated or have limited capacity naturally cannot be defenders, after all, the law is not a child's play.
Among the eight categories of persons mentioned above, the law also specifically stipulates that the persons provided for in items 3 to 7 may be permitted if they are the guardians or close relatives of the defendant and are entrusted by the defendant to serve as defenders. You see, is the legal provisions very humane? Various specific situations are taken into account.
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