[author]GU Yongzhong
[content]
Gu Yongzhong
Professor at the National Institute of Legal Aid, China University of Political Science and Law
Keywords: Attorney-Client Defense, Legal Aid Defense, Defender, Party
In recent years, the legal and legal communities have engaged in discussions regarding the so-called "pit taking legal aid" phenomenon that has emerged in some major and sensitive cases in judicial practice, which has attracted widespread attention from society. This discussion involves the relationship between commissioned defense and legal aid defense, as well as the relationship between criminal defense system and legal aid system, which is of great significance and cannot be ignored. At this time, on August 20, 2021, the Standing Committee of the National People's Congress passed the Law of the People's Republic of China on Legal Aid (hereinafter referred to as the "Law on Legal Aid"). Article 27 of the law stipulates: "When a people's court, people's procuratorate or public security organ notifies a legal aid institution to appoint a lawyer as a defender, the right of the suspect or defendant to entrust a defender shall not be restricted or impaired." In addition, Article 48 also stipulates that a legal aid institution shall make a decision to terminate legal aid in one of the following eight cases, of which the sixth case is "the recipient entrusts a lawyer or other agent on his own". Based on the above provisions and in combination with other relevant legal provisions, it should be said that China's legal aid law has formally established the important principle of "entrusted defense should give priority to legal aid defense" in the relationship between entrusted defense and legal aid defense in criminal proceedings, which is of great significance for correctly understanding the relationship between the criminal defense system and the legal aid system, actively avoiding and correctly handling the actual conflict between entrusted defense and legal aid defense, effectively protecting the defense rights of suspect and defendants, and safeguarding judicial justice. This article intends to discuss the origin, meaning, and implementation of this principle in judicial practice.
1. The embodiment of "legal aid defense should be given priority when entrusting defense" in international criminal justice standards
Before formally discussing this issue, it is necessary to clarify the respective meanings of entrusted defense and legal aid defense. Entrusted defense and legal aid defense are terms in the field of criminal procedure, and are aimed at the relationship between the defender and the parties, including suspect and defendant. In essence, commissioned defense refers to the appointment of a defense counsel by the parties themselves, while legal aid defense refers to the appointment of a defense counsel by a legal aid agency for the parties. Due to the fact that defense counsel is usually appointed by lawyers, especially those appointed by legal aid agencies for clients, both commissioned defense and legal aid defense are actually conducted by lawyers. This is one of the commonalities between commissioned defense and legal aid defense. Although the sources of lawyers for commissioned defense and legal aid defense are different, their functions or responsibilities are the same. They both provide defense for the parties in accordance with the law, safeguard the legitimate rights and interests of the parties, maintain the correct implementation of the law, and promote social fairness and justice.
Although commissioned defense and legal aid defense are only different sources of defense counsel, their responsibilities are the same, both are to defend the parties in accordance with the law. However, it does not mean that for the parties, both commissioned defense and legal aid defense are the same, as long as there is a lawyer to defend them. According to international criminal justice standards, there is a priority order between commissioned defense and legal aid defense for the parties involved, which is reflected in the prioritization of commissioned defense over legal aid defense.
Taking the United Nations International Covenant on Civil and Political Rights (hereinafter referred to as the "Covenant") as an example, Article 14, paragraph 3, specifically stipulates that everyone has the right to equal enjoyment of the following minimum guarantees when charged with a criminal offense. Among them, paragraph (d) is "to be tried in court and to defend oneself in person or by a defense counsel of one's choice; those who have not been appointed a defense counsel shall be accused of having this right; if the court deems it necessary, a public defense counsel shall be appointed for them, and if the defendant is unable to afford compensation, it may be exempted from payment". It is not difficult to see from the above provisions that when anyone is charged with a criminal offense, they have the following "minimum" rights: firstly, the right to appear in court; Secondly, personally defend oneself; Thirdly, if no defense counsel is appointed, they should be informed of their right to defend themselves; Fourthly, if there is no appointed defense counsel, a public defense counsel should be designated for him if necessary, and provided free of charge when he does not have the financial ability. Here, choosing one's own defense counsel means entrusting the defense. If no defense counsel is chosen, providing a public defense counsel free of charge if necessary is considered legal aid defense. In terms of the relationship between the two, it is obvious that entrusted defense takes priority over legal aid defense. Firstly, the defendant should be informed of their right to appoint a defense counsel; Secondly, only when the defendant has not appointed a defense counsel and the court deems it necessary, should a public defense counsel be appointed for the defendant. The core meaning is that entrusting defense is the first choice and unconditional; Legal aid defense is supplementary and conditional on 'when necessary'.
Principle 17 of the "Principles for the Protection of All Persons under Any Form of Detention or Imprisonment" (hereinafter referred to as the "Principles"), adopted by the United Nations General Assembly on December 9, 1988, emphasizes the above requirements of the Convention on a larger scale: "(1) Detainees shall have the right to receive assistance from legal counsel. The competent authority shall inform them of this right in a timely manner after their arrest and provide them with appropriate facilities to exercise it. (2) Detainees who have not chosen legal counsel themselves shall have the right to receive legal counsel appointed by judicial or other authorities in all cases where the interests of justice so require, and shall not be required to pay if they do not have sufficient capacity to pay. Legal counsel" should refer to "lawyers", but not limited to defense lawyers in criminal proceedings, as stated in this principle The detention in China includes "any form of detention", so it is required that "in all cases where the interests of justice so require", "judicial or other authorities" should appoint legal counsel to the detained person. It can be seen that the scope of application of the Principles is broader than that of Article 14 (3) (d) of the Convention, which applies to "all persons subjected to any form of detention or imprisonment", including ensuring that detained persons have access to legal counsel, regardless of the form or nature of the detention or imprisonment. However, clear arrangements have been made in terms of the source of lawyers or the relationship between lawyers and detainees: firstly, the competent authorities should promptly inform detainees of their right to obtain the assistance of lawyers after their arrest, and provide appropriate convenience for them to exercise this right, that is, they should ensure the right of detainees to choose and appoint lawyers on their own; Secondly, in cases where the detained person has not chosen or appointed a lawyer on their own, and when the interests of justice so require, the relevant authorities should assign a lawyer to them, including without compensation. It also clearly reflects the spirit of entrusting lawyers to take priority over legal aid lawyers.
The Basic Principles on the Role of Lawyers, adopted by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders on September 7, 1990, were formulated based on the Charter of the United Nations, the Universal Declaration of Human Rights, and a series of international human rights conventions and legal documents, including the aforementioned Convention and Principles. They also include the requirement to reaffirm the right of any accused person to obtain legal assistance. Article 5 of the Basic Principles on the Role of Lawyers clearly states: "Governments should ensure that all persons who have been arrested or detained, or charged with a criminal offense, are promptly informed by the competent authorities that they have the right to receive assistance from a lawyer of their own choice." Article 6 further states: "Any person who does not have a lawyer has the right to receive effective legal assistance from an experienced and capable lawyer assigned to him according to the nature of the crime, and if he does not have sufficient means to pay for such services, he may not pay." This also upholds the requirement that the appointment of a lawyer takes precedence over legal aid lawyers, that is, the accused should first be informed and ensured that they "have the right to receive assistance from a lawyer of their own choice". The, Secondly, it is necessary to assign lawyers, including free legal aid lawyers, to those who do not have lawyers in case of judicial needs.
2. The formation and establishment of the principle of "priority should be given to legal aid defense when entrusting defense" in China
The Criminal Procedure Law of the People's Republic of China (hereinafter referred to as "the Criminal Procedure Law"), adopted at the Second Session of the Fifth National People's Congress in July 1979, is the first criminal procedure law in New China, which clearly stipulates in the basic principles that "the defendant has the right to defense", providing a basis for the establishment of the criminal defense system. Based on this, an unconditional provision has been made regarding the right of the defendant to appoint a defense counsel on their own, which means that "in addition to exercising their own defense rights, the defendant may also appoint the following persons for defense", including lawyers. At the same time, it is stipulated that if the defendant has not appointed a defense counsel, the court may designate a defense counsel for the defendant in cases where the prosecutor appears in court for prosecution; If the defendant is deaf, mute or a minor, the court shall appoint a defense counsel for him, marking the beginning of the emergence of the criminal legal aid system. Correspondingly, the law requires the court to inform the defendant when serving a copy of the indictment that they may appoint a defense counsel or, if necessary, designate a defense counsel for the defendant.
In March 1996 and March 2012, the legislature amended the Criminal Procedure Law twice, including significantly improving the criminal defense system. Since the beginning of criminal investigation, suspect and defendants can entrust defenders on their own, and can only entrust lawyers as defenders during the investigation phase. At the same time, the criminal legal aid system has been formally established and continuously improved. On the one hand, the litigation stage that should provide legal aid according to law has been extended from the trial stage to the investigation, review and prosecution stage; On the other hand, the scope of legal aid that should be provided by law has expanded from minors, blind, deaf, and mute individuals to include those who may be sentenced to life imprisonment, death penalty, and those with limited criminal liability. It is worth noting that after the two amendments to the Criminal Procedure Law, even though the criminal legal aid system has been significantly modified and improved, the spirit of entrusting defense to give priority to legal aid defense is still implemented in the relationship between entrusted defense and legal aid defense, and it continues to emphasize that legal aid defense can only be launched when suspect and defendants do not entrust defenders.
In July 2003, the State Council issued the "Regulations on Legal Aid", marking the formal establishment of China's legal aid system. Among them, in terms of criminal legal aid, it is consistent with the priority of entrusted defense and legal aid defense reflected in the Criminal Procedure Law. Not only that, but also the situation where the legal aid institution should terminate legal aid as stipulated in Article 23, including "the recipient has also entrusted a lawyer or other agent on their own", clarifies that legal aid defense and entrusted defense cannot coexist. Once the party entrusts a defense lawyer on their own, even if the legal aid institution has already provided legal aid defense, the assistance should be terminated and the litigation activities should be withdrawn. Article 8.5.1.1 (d) of the National Criminal Legal Aid Service Standards issued and implemented by the Ministry of Justice in February 2019 reiterated the above provisions of the Legal Aid Regulations, stating that when "the recipient and their close relatives entrust litigation agents or defense counsel on their own", the legal aid institution "shall terminate legal aid". This reinforces the spirit of prioritizing entrusted defense over legal aid defense from one aspect.
On August 20, 2021, the thirtieth meeting of the Standing Committee of the 13th National People's Congress adopted China's first Law on Legal Aid, which has made progress in criminal legal aid compared with the provisions of the current Criminal Procedure Law. In addition, in terms of the relationship between entrusted defense and legal aid defense, it not only absorbs the provisions of Article 23 of the aforementioned Regulations on Legal Aid, that is, if "the aided person appoints a lawyer or other agent on his own", the legal aid institution shall terminate the provisions on legal aid (Article 48), but also emphasizes for the first time in Article 27: "When the people's court, the people's procuratorate, and the public security organ notify the legal aid institution to appoint a lawyer as the defender, the right of the suspect and the defendant to appoint a defender shall not be restricted or impaired." This provision clearly expresses the position and view of the Legal Aid Law on the relationship between entrusted defense and legal aid defense: although both entrusted defense and legal aid defense are suspect and defendants, however, For the parties involved, entrusting defense is more important than legal aid defense. Therefore, when the case handling organ notifies the legal aid institution to assign a lawyer to the suspect or defendant for defense, it shall give priority to protecting the right of the parties to entrust defense, and shall not restrict or impair their right to entrust defense because of the assignment of legal aid. It should be said that this regulation marks the formal establishment of the important principle in Chinese law that entrusted defense should give priority to legal aid defense.
3. The meaning and legal basis of the principle of "priority should be given to legal aid defense when entrusting defense"
The core of the principle of "priority should be given to legal aid defense" is the word "priority", which seems to have a clear meaning, but in fact, it is not so simple. Legally speaking, "priority" has the following multiple meanings.
Firstly, prioritize notification. In criminal proceedings, after the parties (suspect and defendants) arrive at the case, the case handling organ shall first inform them that they have the right to entrust defenders, and then inform them that if they give up their right to entrust defenders or cannot or will not entrust defenders for some reason, they can obtain legal aid provided by legal aid institutions free of charge, including two situations: they do not need to apply for legal aid according to law, they can obtain legal aid unconditionally, and they need to apply for and obtain legal aid after examination and approval. The priority of notification is very important for parties who are not aware of their right to defense when they first appear in a case. The first step is to inform them of the entrusted defense, followed by legal aid defense. The two forms of defense will form different positions and their own considerations in the minds of the parties involved. In fact, the Criminal Procedure Law, as well as the judicial interpretations or relevant documents formulated by the Supreme People's Court, the Supreme People's Procuratorate, and the Ministry of Public Security on the implementation of the Criminal Procedure Law, all reflect the spirit of "priority notification" on this issue.
Secondly, priority should be given to delegation. When the parties, their guardians, and close relatives express their willingness to entrust a defense lawyer on their own, the investigating authority should provide convenience and protection for their self entrusted defense, and should not notify the legal aid institution to provide legal aid defense for the parties. In this regard, the relevant provisions in the Provisions on the Procedure of Public Security Organs in Handling Criminal Cases formulated and amended after the previous amendments to the Criminal Procedure Law from 1996 to 2018 are worthy of recognition. For example, "if a suspect in custody requests the detention center to entrust a defense lawyer, the detention center should promptly convey its request to the case handling department, and the case handling department should timely convey the request to the defense lawyer or law firm entrusted by the suspect"; "If the suspect in custody only makes a request to entrust a defense lawyer, but cannot name a specific object, the case handling department shall promptly notify the guardian or near relative of the suspect to entrust a defense lawyer on his behalf. If the suspect has no guardian or near relative, the case handling department shall promptly notify the local lawyers association or the judicial administration organ to recommend a defense lawyer for him.". Of course, this provision originated from Article 10 of the Provisions on Several Issues in the Implementation of the Criminal Procedure Law issued by the "Two Houses, Three Ministries and One Committee" in January 1998. At that time, it was mainly for the provision that after the amendment of the Criminal Procedure Law in 1996, Article 96 stipulated that suspect at the investigation stage could hire lawyers to provide legal assistance, in order to ensure and facilitate suspect to exercise this procedural right.
Thirdly, abandoning or not entrusting a defense party may assign legal aid defense. After informing the parties that they have explicitly waived their right to entrust defense on their own or are unable or unwilling to entrust defense for any reason, if the case falls under the circumstances where legal aid should be provided according to law, the investigating authority shall notify the legal aid institution to appoint a lawyer to defend the parties; If the case belongs to the situation where the parties can apply for legal aid, the investigating authority shall assist the parties in applying to the legal aid institution. In response to this situation, the Provisions on the Procedure of Public Security Organs in Handling Criminal Cases requires that: "After receiving the legal aid application submitted by a suspect in custody, the public security organ shall transfer the application to the local legal aid institution within 24 hours, and notify the applicant's supervisor, close relatives or other personnel entrusted by the applicant to assist in providing relevant documents, certificates and other relevant materials. If the address of the suspect's guardian, close relatives or other personnel entrusted by the suspect is unknown and cannot be notified, the legal aid institution shall be informed when the application is transferred."
Fourthly, it is allowed to refuse legal aid defense and entrust defense on one's own. The Interpretation of the Supreme People's Court on the Application of China's Criminal Procedure Law and the Criminal Procedure Rules of the People's Procuratorate (Trial) of the Supreme People's Procuratorate both clearly stipulate that even under legal or discretionary conditions, if the handling authority notifies the legal aid institution to assign legal aid lawyers to provide defense for the parties, the parties have the right to refuse legal aid defense and instead entrust or defend themselves. However, if it belongs to the situation where legal aid defense should be provided according to law, and the party refuses legal aid defense and does not entrust defense on their own, the investigating authority shall notify the legal aid institution to appoint another lawyer to defend them.
Fifthly, after being assigned legal aid defense, the parties still have the right to entrust their own defense. Can the parties be entrusted with another defense after obtaining legal aid? Article 48 of the Legal Aid Law actually provides an answer, that is, when "the aided person entrusts a lawyer or other agent on their own", including entrusting a defense lawyer on their own, "the legal aid institution shall make a decision to terminate the legal aid". This regulation indicates that, firstly, even if legal aid defense has been provided to the parties, they still have the right to entrust another defense; Secondly, once the party entrusts another defense, the previously assigned legal aid defense should be terminated. This indicates that legal aid defense and entrusted defense cannot coexist, even if there is only one lawyer for legal aid defense and only one lawyer for entrusted defense. Although it complies with the provisions of the Criminal Procedure Law that a party can entrust one to two people as defense counsel, according to Article 48 of the Legal Aid Law, legal aid defense should be terminated and replaced by entrusted defense.
Sixth, the entrustment by guardians or close relatives has the same legal effect as the entrustment by the parties themselves in terms of procedures. In criminal proceedings in Western countries, regardless of whether the parties are detained or not, they can usually entrust lawyers on their own to ensure their right to legal defense. The criminal procedure in China is different, especially when the suspect first appears in the case after the incident, and is often detained or arrested. Once the parties are in custody, it is difficult for them to directly choose and hire or entrust lawyers on their own. In view of this, in order to protect the right of the parties to obtain defense, especially after the provision that suspect can hire lawyers at the investigation stage was made in Article 96 of the Criminal Procedure Law revised in 1996, Article 10 of the Provisions on Several Issues in the Implementation of the Criminal Procedure Law of the People's Republic of China. Later, the spirit of this provision was absorbed and extended to the whole process of criminal proceedings when the Criminal Procedure Law was revised for the second time in March 2012, forming the provision of Paragraph 2 of Article 34 of the current Criminal Procedure Law, that is, "If suspect and defendants are in custody, their guardians and close relatives can also be entrusted as defenders". Therefore, in China's criminal legislation, it has been established that the parties can entrust defense either on their own or by their guardians or close relatives, and both types of entrustment have legal effect in terms of procedures.
Of course, since "proxy delegation" is not directly delegated by the parties themselves, theoretically and practically, confirmation from the parties is required after delegation. For this reason, the National Bar Association formulated the Code for Lawyers to Handle Criminal Cases, which requires that lawyers acting as defenders in criminal cases are entrusted by "relatives of suspect, defendants or others, and must be confirmed by suspect and defendants at the meeting". The term 'confirmation' here is actually equivalent to 'ratification'. In the process of 'confirmation' or 'ratification', according to the nature of 'agency delegation', the parties can certainly veto it. However, before veto, the act of 'agency delegation' should have the same legal effect as the party's own delegation in terms of procedure. Its significance has two aspects: firstly, the guardians and close relatives of the parties concerned have the right to "entrust on their behalf" in accordance with the law, and the investigating authorities shall not restrict or deprive the guardians and close relatives of the right to exercise "entrust on their behalf" in accordance with the law; The second is that once the guardian or close relatives of the parties involved engage in the act of "entrusting" on their behalf and inform the investigating authority through the entrusted lawyer, the investigating authority should not notify the legal aid agency to provide legal aid defense for the parties involved, unless the parties themselves refuse the lawyer entrusted to defend on their behalf.
Why is it necessary to establish the principle of "priority should be given to legal aid defense" in the law, and "priority" has multiple meanings as mentioned above? The legal basis mainly includes the following aspects.
Firstly, criminal proceedings involve the deprivation of life, freedom, and property of the parties involved, and it is only natural to prioritize legal aid defense when entrusting defense.
The suspect and defendants in criminal proceedings belong to the accused. Once their suspected and accused crimes are confirmed according to law, they will face the fate of life, freedom and property being killed or taken. In case of wrong or wrong cases, irreparable consequences will result! In such a severe situation, whether from the perspective of the parties' own needs or the requirements of judicial fairness, it is only natural for the law to grant and protect the rights of the parties, their guardians, and close relatives to choose and entrust their own defense, and to prioritize legal aid defense.
Secondly, criminal defense should be based on a high level of trust between the parties and the defense counsel, ensuring that entrusted defense takes priority over legal defense.
Although the legal status of appointed defense counsel and legal aid defense counsel is equal, and their litigation rights are also the same, the relationship between defense counsel and the parties involved is vastly different. Entrusted defense refers to the selection and appointment of defense counsel by the parties, their guardians, and close relatives. In this relationship, some parties and their guardians, close relatives, and defense counsel have already known each other, and even become friends with each other, forming a good trust relationship; Some parties, their guardians, close relatives, and defense counsel may not have known each other before being formally entrusted, but they have already had contact and communication, and have also learned about their professional ethics and abilities through various channels, establishing a basic trust relationship; Even some guardians and close relatives of the parties involved go to great lengths to appoint defense lawyers on behalf of their relatives involved in the case, carefully selecting and recognizing them in their hearts before deciding to appoint them as their clients, and so on. However, legal aid defense originates from notifications from case handling agencies and assignments from legal aid institutions. The parties involved, their guardians, close relatives, and the assigned lawyers often have no knowledge of their conduct and professional abilities, and there is no basis for trust between the two parties. Compared to other options, prioritizing legal aid defense through entrusted defense is more in line with the psychological needs of the parties involved, their guardians, and close relatives.
Thirdly, entrusted defense originates from the client's delegation and belongs to paid legal services. The rights and obligations of both parties are clear, and compared with legal aid lawyers, one party has a certain degree of binding force on the entrusted lawyer and is more willing to accept it.
Entrusted defense and legal aid defense are paid legal services for one party, while the latter is free legal aid. The paid legal service relationship reflected in the entrusted defense is a contractual relationship, in which the rights and obligations between the two parties are clear, and mutual communication follows certain guidelines. Especially under the contractual relationship and within the scope of legal provisions, one party often has a certain degree of binding force on the lawyer entrusted, which helps to handle the relationship between the two parties and also helps to safeguard the legitimate rights and interests of the parties in litigation. Legal aid defense is not the case. As it is legal aid provided by legal aid institutions to the parties free of charge in accordance with the law, there is no contractual relationship between the two parties. The parties, their guardians, and close relatives not only do not know the legal aid lawyer and lack a basis for trust, but also have no moral or legal constraints or basis for the legal aid lawyer during the litigation process. It is difficult for the two parties to get along with each other like a commissioned defense relationship.
Fourthly, legal aid defense comes at the cost of the state investing relevant resources. The limited judicial resources determine that legal aid defense is complementary and substitute to commissioned defense, and cannot override commissioned defense.
Legal aid defense is free for the parties involved, but not free for the state. It comes at the cost of the state's enormous resources. From the perspective of national governance and judicial fairness, the state should bear the responsibility of providing legal aid. However, from an economic perspective, this is a significant expense and burden for the state. Especially in order to build a better legal aid system and maximize its effectiveness, the state needs to invest more resources. However, ideals and reality are often disconnected, and the limited judicial resources and the increasing demand for legal aid create a sharp contradiction. In this situation, countries around the world classify legal aid, including legal aid defense, as supplementary and substitute. Legal aid defense is only provided when the commissioned defense cannot be in place due to various reasons and the lawyer's defense cannot be absent, that is, when the judicial interests require it, in order to make up for the absence of commissioned defense. Legal aid defense cannot be prioritized over commissioned defense.
Moreover, even if a country has strong economic strength and can provide legal aid defense for all suspect and defendants in criminal proceedings, it cannot be considered that legal aid defense can take precedence over entrusted defense. As mentioned earlier, the priority of legal aid defense for commissioned defense is mainly based on various reasons mentioned above, and economic reasons are only one of them and not the main reason. In fact, even in the wealthiest countries in the world today, such as the United States and European countries, although the total number or proportion of legal aid defense cases is higher than that of commissioned defense, legal aid defense has not replaced commissioned defense or taken priority over commissioned defense. It is still a substitute measure for commissioned defense.
In China, lawyer defense in criminal proceedings, including commissioned defense and legal aid defense, is generally considered to be only about 30%. In recent years, some scholars have used big data to conduct empirical research, and the proportion is less than 30%, with an average of 22.13%, which means that there are more than 70% of criminal cases, and suspect and defendants have neither entrusted lawyers nor legal aid lawyers. Because the defense rate of lawyers in criminal proceedings in China is still relatively low, the Supreme People's Court and the Ministry of Justice have taken the initiative to launch a reform pilot program of "full coverage of lawyer defense in criminal cases" since November 2017. Initially, the pilot program was only carried out in some provinces, autonomous regions, and municipalities directly under the central government, and since 2019, it has been expanded nationwide. According to a recent press conference held by relevant leaders of the Ministry of Justice at the State Council Information Office, since the pilot, the defense rate of lawyers in criminal cases nationwide has reached 66%. It should be said that the pilot program has achieved significant results. However, the author believes it is necessary to clarify that this 66% lawyer defense rate is actually limited to the trial stage and does not include the investigation stage and the review and prosecution stage, according to the pilot document "Measures for Carrying out the Pilot Work of Full Coverage of Lawyer Defense in Criminal Cases" released by the Supreme People's Court and the Ministry of Justice in October 2017. The "full coverage of lawyer defense in criminal cases" should include three stages: investigation, review and prosecution, and trial, both theoretically and legally. Only then can it be called "full coverage". At present, after several years of pilot projects, the defense rate of lawyers in the trial stage has only reached 66%. This means that there is still a long way to go to truly achieve "full coverage of lawyer defense in criminal cases" in the three stages of criminal litigation in China. Moreover, the current 66% defense rate includes commissioned defense. If the entrusted defense is not included, the proportion will be even lower if only legal aid defense is left. In this situation, solely from an economic perspective, it is not only necessary but also long-term for China to prioritize legal aid defense through commissioned defense.
4. Abnormal phenomena and solutions in current judicial practice
As mentioned earlier, the relevant provisions in China's legislation, judicial interpretations, and normative legal documents regarding the relationship between commissioned defense and legal aid defense have already reflected the spirit of prioritizing legal aid defense over commissioned defense. On the basis of summing up and improving previous legislative and judicial experience, the Legal Aid Law formally established the principle of giving priority to legal aid in entrusted defense, which is mainly reflected in Article 27: "When people's courts, people's procuratorates, and public security organs notify legal aid institutions to appoint lawyers as defenders, the rights of suspect and defendants entrusted defenders shall not be restricted or damaged." This provision has two main points. Firstly, this is a regulation made in response to the notification of legal aid institutions by people's courts, people's procuratorates, and public security organs to appoint lawyers as defense counsel, rather than a regulation for legal aid institutions. The reason for this is that the initiative and decision-making power to assign lawyers to the parties are in the hands of the case handling authorities. Once the case handling authorities notify the legal aid institutions, they should assign lawyers. Secondly, the core of the provision is that the case handling organ's notification to the legal aid institution that it is not unconditional and unconstrained to appoint a lawyer as the defender, but "shall not limit or damage the right of the suspect and the defendant to entrust the defender", that is, it shall not limit or damage the entrusted defense on the grounds of assigning legal aid defense, and it shall give priority to the protection of the parties' entrusted defense. But in recent years, various abnormal phenomena have emerged in judicial practice, mainly including the following situations.
Firstly, the case of Mr. Lao. Lao was arrested in November 2019 after fleeing for 20 years on suspicion of intentionally killing, kidnapping, and robbery with others. After Lao was arrested, his close relatives entrusted lawyer Wu to serve as their defense counsel. Subsequently, in accordance with the provisions of the Criminal Procedure Law, Wu went to the detention center on December 11 of the same year with relevant documents and procedures to request a meeting with Lao, and contacted the investigators to explain his purpose. The investigators stated that they needed to report to their superiors for approval before the meeting could take place. On the one hand, Wu pointed out that according to the provisions of the Criminal Procedure Law, this case does not require approval to meet, and on the other hand, he also expressed willingness to wait. Unexpectedly, on December 12th, the investigating authority issued a "situation report" stating that after being escorted back to the local area from another city, "in order to protect the legal rights and interests of Mr. Lao, the investigating unit informed him immediately that he could hire a lawyer. On December 11th, Mr. Lao submitted both oral and written requests to the public security authorities, refusing to allow his family to hire a lawyer for him and applying for legal aid from the government. After coordination by the public security organs, the lawyer designated by the Municipal Legal Aid Center has provided legal aid to Mr. Lao on December 12th. From then on, until the first instance of the case was concluded, Lawyer Wu neither met with Mr. Lao nor intervened in the case to provide defense for him. After the first instance verdict, Lao filed an appeal, and his relatives once again entrusted Wu and another lawyer to serve as defense counsel for the second instance. However, when the two commissioned lawyers requested a meeting at the detention center, they were once again denied permission. After contacting the investigators of the second instance court, it was informed that Lao had submitted a written application for legal aid lawyers to defend him during the appeal period when he submitted the appeal. This means that the lawyer entrusted by the close relatives of Lao cannot enter the second instance to defend Lao.
Secondly, the case of Zhou causing death due to negligence. On the evening of February 6, 2021, Mr. Zhou, a contracted driver for the Huolala ride hailing platform, was dissatisfied with the long waiting time and refusal to provide moving services to customers for a fee while driving. During transportation, the platform violated safety regulations by not reminding customers to fasten their seat belts or opposing driving to remote areas, causing customers to feel scared and leave their seats and lean out of the car window. Zhou had foreseen the danger of the customer falling off the car, but believed it could have been avoided. He did not take effective measures in a timely manner, resulting in the customer's death from falling off the car. After trial, the first instance court ruled that Zhou committed the crime of causing death due to negligence. Considering his voluntary confession and active rescue of the victim, the court adopted the sentencing recommendation of the public prosecution and sentenced him to one year's imprisonment with a one-year probation. According to reports, during the first instance of the case, the defendant's wife entrusted a lawyer for her husband and sent a letter to the Changsha Legal Aid Center requesting the revocation of legal aid, stating that "my family is not financially difficult enough to afford a lawyer, and the purpose of the national legal aid system is to ensure that economically disadvantaged individuals receive legal aid. I believe that my family does not need legal aid... I request that your center revoke the legal aid assignment and allow me to personally entrust a lawyer to intervene in the case. Please approve. But according to her own Weibo account, she later submitted a report to the first instance court regarding the refusal of legal aid lawyers because there were already two designated legal aid lawyers in the trial stage of the case, but did not receive a response from the court. According to reports, during the trial, two legal aid lawyers respectively presented a light defense and a not guilty defense for the defendant.
Thirdly, the extortion case of Mr. Xu. Xu, a female auxiliary police officer from the police station, was charged with using the excuse of having an improper sexual relationship with relevant personnel to seize the other party's fear of being exposed and affecting their work, family, and reputation. She extorted a total of 3.726 million yuan from nine people. After legal trial, the first instance court convicted Xu of extortion and sentenced him to 13 years in prison. During the first instance of the case, a lawyer appointed by relatives acted as the defense counsel in court. After the first instance verdict, Xu appealed and his relatives appointed two lawyers to serve as defense counsel. But according to media reports, the commissioned lawyer issued a "few points of explanation" stating that after accepting the commission, they rushed to the detention center to meet with Xu Tingming and were "informed that the relevant department had already assigned two legal aid lawyers". Afterwards, they had more than ten face-to-face communications with relevant departments, sent appeal letters to relevant leaders, mailed lawyer's rights protection materials to higher-level departments, and made a written request to the legal aid center to terminate legal aid. The entrusted lawyer also stated that according to Article 51 of the Interpretation of the Supreme People's Court on the Application of the Criminal Procedure Law of the People's Republic of China, "we have requested to personally enter the detention center to verify with Xu in person, or have the investigators verify with Xu with the entrusted materials and letters from the family members, but were all refused." Finally, "after friendly negotiations with the family members, we have decided to officially withdraw from the defense of this case.
From the perspective of the criminal procedure system and criminal legal aid system, and according to relevant media reports, the above three cases have both differences and similarities. The difference is that Lao is involved in intentional homicide, kidnapping, and robbery, which are cases that may result in the death penalty. If he has not been entrusted with a defense, he should be provided with legal aid defense in accordance with the law; Zhou has been involved in the crime of causing the death of a person, which is a minor offense. Even if he did not entrust a defense, it does not belong to the legal cases that should provide legal aid defense for him. Of course, when he did not entrust a defense, the investigating authority can also notify the legal aid institution to provide legal aid defense for him; Xu was involved in the crime of extortion, which does not fall under the circumstances where legal aid defense should be provided for him according to law. During the first instance, his relatives had already entrusted lawyers to defend him, but after the appeal, the second instance court notified the legal aid institution to provide legal aid defense for him. The commonality is that in all three cases, regardless of the circumstances, the close relatives of the parties have appointed defense lawyers for the defendants. However, except for the case of Xu, who appointed lawyers to participate in the first instance proceedings, in other cases and the second instance proceedings of Xu, the defense lawyers appointed by relatives did not participate in the litigation to provide defense for the parties; On the contrary, the investigating authorities have notified the legal aid institutions to provide legal aid lawyers for the parties involved; Secondly, in all three cases, the reason why the investigating authorities did not allow lawyers appointed by the parties' relatives to intervene in the litigation and provide defense was because the parties themselves applied for legal aid defense and did not agree to their relatives' defense; Thirdly, in all three cases, the investigating authorities did not allow defense lawyers appointed by the parties' relatives to meet with them in person to verify their attitude or willingness to accept the appointment of lawyers. They also did not provide written or signed materials to the parties' relatives and appointed lawyers, stating that they did not agree to have their relatives appoint lawyers and apply for legal aid.
The differences and similarities between the above three cases have raised two urgent issues that need to be deeply studied and effectively resolved in the legal and legal fields.
4.1 Is the reason why the investigating authority refused to allow relatives to serve as their appointed defense counsel and accepted legal aid institutions to appoint legal aid defense counsel on the grounds that the parties themselves did not agree, and is the provision of Article 51 of the new judicial interpretation of the Supreme People's Court valid?
The beginning of this article points out that whether to entrust defense or apply for or accept legal aid defense is essentially the right of the parties involved in or accused of a crime. However, based on the actual situation of our country, once suspect and defendants are taken custodial coercive measures or even residential surveillance coercive measures, they will be isolated from the outside world. In addition, most of them do not understand the law, and even their education level is relatively low. They will neither claim nor dare to claim rights against the powerful case handling mechanism and its personnel, which makes it difficult to exercise their rights to entrust defenders. For this reason, the Criminal Procedure Law specifically stipulates that "if a suspect or defendant is in custody, his guardian or close relatives can also act as the entrusted defender". Since the law clearly stipulates that relatives who are in custody can "act on behalf of others", it means that on the one hand, the act of relatives acting on behalf of others is equivalent to the parties themselves acting on behalf of others. The investigating authority should handle relevant matters in accordance with the law as if they were entrusted by the parties themselves. For example, if a relative acts on behalf of someone and informs the investigating authority, regardless of the situation, the investigating authority should not notify the legal aid institution to assign legal aid defense; Even if legal aid defense lawyers have been notified and assigned, it is not possible to exclude defense lawyers entrusted by relatives, and at least the parties should be informed. On the other hand, for the defense counsel entrusted by the relatives of the parties involved, the investigating authorities and their personnel should not only inform the parties, but more importantly, listen to their opinions and allow them to make their own decisions on whether to agree to the entrusted defense. Especially when there are both defense lawyers appointed by the relatives of the parties involved and legal aid defense lawyers, it is even more important to provide the parties with sufficient freedom to make their own choices. Once the parties themselves make a decision, it should be respected. For the defense counsel they have not chosen, whether it is a commissioned defense counsel or a legal aid defense counsel, they should be notified to withdraw from the lawsuit. The defense counsel who has made a choice should be retained or allowed to participate in the lawsuit, and the defense counsel should be guaranteed to exercise their litigation rights in accordance with the law.
Based on the above, the author believes that, only from a theoretical and legal perspective, the reason why the investigating authority refused to hire a defense lawyer appointed by a relative and accepted a defense lawyer appointed by a legal aid institution on the grounds that the party concerned did not agree should be valid. However, this does not mean that the provision in Article 51 of the Interpretation of the Supreme People's Court on the Application of the Criminal Procedure Law of the People's Republic of China in March 2021, which states that "if a legal aid institution assigns a lawyer to provide defense for a defendant, and the defendant's guardian or close relatives entrust a defense counsel on their behalf, the defendant's opinions shall be heard and the defense counsel shall be determined by them," is fully established. In the author's opinion, it should be feasible for the defendant to determine the choice of defense counsel themselves, only when there is already legal aid defense and commissioned defense. However, the provisions of Article 51 are incomplete and inadequate, with obvious shortcomings. Firstly, this article only addresses the situation where the legal aid institution assigns legal aid defense first and "the defendant's guardian or close relative entrusts a defense lawyer on behalf of the defendant" later, but does not involve the issue of the party's guardian or close relative entrusting the defense first and how the court treats and handles legal aid defense in this situation; Secondly, according to legal provisions and judicial practice, in the provision of "legal aid institutions appointing lawyers to provide defense for defendants" mentioned in this article, the majority should be notified by the court to appoint lawyers by the legal aid institutions, while the minority should be appointed after the parties' relatives apply to the legal aid institutions and are approved. In this situation, how to face and handle the relationship between entrusted defense and legal aid defense, especially when there is a conflict, the main responsibility should be the court rather than the legal aid institution. However, the emphasis on the "legal aid institution" in the article neglects the "court", which seems to evade responsibility; Thirdly, this article only stipulates that the court should listen to the opinions of the defendant internally and determine the choice of defense counsel, without addressing the important issue of whether the court should respond and explain to the defendant's relatives and the defense counsel entrusted on their behalf externally, and how to respond to the explanation. This clearly shows insufficient emphasis on the power of delegation stipulated in the Criminal Procedure Law.
4.2 Should the investigating authorities and in what way should they respond and explain to the relatives of the parties involved, as well as the appointed defense counsel, if the detained parties do not agree with their relatives' commission, and if the appointed defense counsel does so?
Objectively speaking, Article 51 of the Interpretation of the Supreme People's Court on the Application of the Criminal Procedure Law of the People's Republic of China only applies to the trial stage of the court, but the issues involved also exist and are important in the investigation stage of the public security organs and the review and prosecution stage of the procuratorial organs. Therefore, these issues should be considered comprehensively and resolved together. Firstly, it should be clarified that the investigating authorities should respond and explain to the close relatives of the detained parties who entrust them and the appointed defense counsel, regardless of whether the parties agree or accept them. This is a basic requirement for respecting and safeguarding the power of delegation stipulated in the Criminal Procedure Law. Secondly, the idea of responding to the confession is that the case handling organ should, in view of the prominent problem of serious information asymmetry in this process, establish communication channels and mechanisms that can open up the communication between the suspect in custody, the defendant and his external relatives, as well as the entrusted defender, so that the internal and external can communicate with each other, verify information, and properly handle the relationship between entrusted defense and legal aid defense and related issues.
Given the complex and diverse relationship and related issues between commissioned defense and legal aid defense in legislation and judicial practice, the author believes that cases where commissioned defense has already occurred and legal aid defense is available or may be provided can be handled in two situations.
The first scenario is a case where the parties are required by law to obtain a defense. This type of case mainly refers to cases where, due to the special identity of the parties involved (minors, blind, deaf, mute, etc.), the seriousness of the case, and the possibility of heavy punishment (life imprisonment, death penalty), the law stipulates that if the parties have not appointed a defense lawyer, the investigating authority should notify the legal aid agency to assign a lawyer to provide legal aid to the parties, and the time requirement is relatively tight. For such cases, two communication and verification mechanisms can be established respectively: first, if a close relative of the party entrusts a defense earlier than legal aid, the entrusted defender should be allowed and arranged to meet with the suspect and defendant in custody to communicate and verify opinions in person and make a final decision; Secondly, if a close relative of the party entrusts the defense later than legal aid, the case handling organ shall inform and ask whether the suspect and defendant in custody are willing to meet. If he agrees to meet with the defender entrusted on his behalf, he shall arrange a meeting and deal with it in the former way; If they do not agree to meet, they shall provide written materials written or signed by them, clearly stating that they do not agree to have their relatives as their appointed defense counsel, which shall be handed over by the investigating authority or detention center to their close relatives or appointed defense counsel.
The second scenario is a case where it is not necessary according to law, but the investigating authority can notify the legal aid institution to assign legal aid defense. Due to the fact that such cases are not legally required to be notified to the defense, the importance, urgency, and enforceability of providing legal aid are different from the previous type of cases. Therefore, flexible expressions such as "can be notified" or "can be applied for" have been adopted in legislation. For such cases, regardless of the time when the relatives of the parties entrusted to defend, once they have gone through the procedures of entrusted defense and informed and submitted to the case handling organ or detention center, the case handling organ or detention center shall allow and arrange the entrusted defenders to meet with the suspect and the accused in custody, communicate and verify their opinions in person, and make the final decision.