Notice on Lawfully Safeguarding Lawyer's Procedural Rights and Regulating Lawyers Participation in Court Hearing Activities

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Supreme People's Court, the Ministry of Justice

Notice on Lawfully Safeguarding Lawyer's Procedural Rights and Regulating Lawyers Participation in Court Hearing Activities

Sifatong [2018] No. 36

To the High People's Courts and justice offices (bureaus) of all provinces, autonomous regions, and directly-governed municipalities, the branch court for the Xinjiang Uighur autonomous region Production and Construction Corps , and the Xinjiang Production and Construction Corps justice bureau:

Notice is hereby given on the following matters so as to further protect lawyers' procedural rights, standardize lawyers' participation in courtroom trial activities, giving full play to the roles of lawyers in preserving parties' lawful rights and interests, preserving the correct implementation of law and judicial fairness.

I. All levels of people's court and their staffs must respect and safeguard lawyers' procedural rights, strictly implement legally-prescribed procedures, treat all litigants equally, reasonably allocate time for questions, evidence debate, statements, debate, and defenses from all parties, and fully hear lawyers' opinions. Judges are not to arbitrarily interrupt or stop lawyers' regular questioning, evidence debate and expression of defense representation opinions on determination of case facts and on the application of law; however, where they attack the Party and state political system or legal system, or where the opinion was on an issue for which consensus was reached at the pretrial conference, is irrelevant to the case; insults, defames or threatens others; or intentional disrupts courtroom order, the chief judge or sole adjudicator hearing the case may stop in, based on the circumstances. Where lawyers clearly ask leading questions and the public prosecutor raises an objection, the chief judge or sole judge hearing the case may stop it after review and verification.

II. Lawyers participating in hearings must not tape, videotape, take pictures of, or use mobile communications tools to broadcast trial activities, and must not conduct other actions that violate court rules or disobey court orders. Where lawyers tape, videotape, take pictures of, or use mobile communications tools to broadcast trial activities, the people's courts may temporarily seize their equipment and storage media, and delete the relevant content.

III. During trial at court, judges shall respect the lawyer and must not insult or taunt lawyers. Where the chief judge or sole judge hearing the case finds that a lawyer has violated the rules of court or courtroom discipline during trial at court, they shall lawfully give warnings, admonishments and so forth, and when it is truly necessary may adjourn for handling; but unless there are serious disruptions of courtroom order such as attacking the party and state political and legal systems at court, measures such as ordering lawyers to leave the courtroom or forcibly removing them, are not to be employed. Where it is truly necessary for court police to employ measures against lawyers to preserve courtroom order, the relevant law enforcement actions should be regular and civil, maintaining necessary and reasonable limits. After lawyers have been ordered to leave the court, forcibly removed from court, or fined, where they sign a guarantee ensuring that they will obey court orders and will not disrupt courtroom order again, then with the permission of the court, they may continue to serve as defenders or agent ad litems in the same case; where they have left court with permission, not timely appeared in court to participate in proceedings without legitimate reason, been taken into custody, or after signing a guarantee are again ordered to leave the courtroom or are forcibly removed, they must not continue to serve as a defender or agent ad litem in the same case. The people's courts shall make full video or audio record or of court trial activities, and shall record lawyers' violations of the legally prescribed procedures in the case file.

4. Where lawyers feel that judges have violated the law or or rules during trial, they may make a complaint or report it to the relevant people's court or to the supervisory department of the people's court at the level above; and the people's court shall handle it in accordance with law and promptly reply to the lawyer with the handling circumstances and concurrently report it to the local judicial-administrative organ and lawyers association. Where there is a high level of public interest, the outcome shall be published. Where lawyers feel that their procedural rights have been violated, they shall apply to the judicial-administrative organs or lawyers association for preservation of their practice rights at the completion of the hearing, but must not use rights protections as an a reason for disrupting to normal conduct of court, must not use stir up cases through the internet in their own name, or means such declarations, open letters, or calls to action made through other persons or the media.

V. Where people's courts find that lawyers have conduct that violates laws or regulations, they shall make a judicial recommendation to the judicial-administrative organs or lawyers associations, and submit relevant evidence materials such as the recordings and transcripts of the hearings. Where further investigation and verification is necessary, they should cooperate and coordinate with the relevant evidence gathering efforts by the judicial-administrative organs and lawyers association. Where the judicial administrative organs and lawyers’ associations receive complaints from the parties and judicial proposals of the people’s courts, they shall promptly investigate the cases and impose administrative penalties or disciplinary actions in accordance with laws and regulations in violation of laws and regulations. The parties and the people's court shall be promptly notified in writing of the outcome disposition. Decisions on professional sanctions administrative punishment of public censure or higher are all to be publicly disclosed, and where each areas' judicial-administrative organs and lawyers associations are to proactively discover lawyers' conduct in violations of laws and regulations, they should promptly open a case and investigate it.

VI. The judicial-administrative organs, together with the people's courts and lawyers associations, shall establish tiered and categorical disposition mechanisms. Where lawyer rights protection incidents or violations of laws and regulations are discovered in that area, the area's people's court and judicial-administrative organs are to promptly address the relevant requests in accordance with law; and where they can be promptly corrected, they shall be immediately corrected. For cross-region lawyers rights protection incidents and violations of laws and regulations, where the judicial-administrative organs for the area where the conduct occurred discover that lawyers are suspected of practicing in violation of laws and regulations, they shall submit punishment opinions and recommendations to the judicial-administrative organs where they were registered, and those judicial-administrative organs are to open a case and investigate upon receiving the opinions and recommendations, and give feedback on the investigation outcome to the judicial-administrative organs for the place where the conduct occurred. Where the judicial-administrative organs for the place where the conduct occurred does not agree with the opinions on punishments, they shall report to the judicial-administrative organs at the shared level above for review. The higher level judicial-administrative organ shall conduct a review of the two regions' judicial-administrative organs' opinions and the relevant evidence materials, and issue an opinion on the disposition. The Ministry of Justice, together with the Supreme People's Court and All-China Lawyers Association, may take responsibility for handling major and complicated incidents such as cross-provincial (regional, municipal) lawyers' rights protection that is intertwined with violations, and when necessary, request the party committee and political-legal committee take the lead in organizing a joint investigation group. Handle major and complicated cross-regional incidents within a province, with reference to the methods described above.

VII. When major sensitive and complicated cases are heard in court, on the basis of notification from the people's courts, the judicial-administrative organs or lawyers associations with management and oversight duties for the lawyers shall appoint people to attend and conduct on site supervision and guidance.

VIII. People's courts at all levels and the judicial administrative organs should emphasize discovering and publicizing typical examples of people's courts respecting and protecting the procedural rights of lawyers and lawyers respecting the authority of courts and observance of trial discipline; and forcefully commend those at the forefront, and give play to their role as positive guidance. At the same time, examples should be circulated of the people's courts and judicial-administrative organs' violations of lawyers legitimate rights, improper handling of lawyers' violations of laws and regulations, and lawyers' receiving punishments for practice in violation of laws and regulations; educating and guiding judges and lawyers' conscientious establishment of correct ideas, mutual respect, mutual support, and mutual oversight, to create a positive atmosphere for the courts' lawful adjudication, and lawyers' lawful performance of their duties.

2018/4/21

 

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