Prostitution is conducive to reducing rape, which is a hot topic in public opinion. What is the matter? Come and have a look. Recently, a "work contact letter" issued by Yuhua District Procuratorate of Changsha City, Hunan Province, to Changsha Judicial Bureau on September 11, 2017, has been widely spread on the Internet. This public letter of improper speech by complaint Lawyer Liu in court debate has attracted the attention of the legal community.
It is very rare in the domestic judicial field that a lawyer's improper defense opinions are questioned by a letter sent by the procuratorate. The procuratorate sent a letter to ask the judicial administrative department to "punish" the lawyer if he is offside. Yesterday, a reporter from the Chinese business daily confirmed from many lawyers in Hunan that until now, Changsha Judicial Bureau has not punished the Lawyer Liu.
Opinion of Public Prosecution: Lawyer's speech goes against the law and sends a letter to question
What improper defense opinions did Lawyer Liu give in the court? This should start from a case heard by Yuhua District Court of Changsha City on May 16, 2017.
Reporter of the Chinese business daily found out the criminal judgment of the first instance of the crime of luring, detaining and introducing prostitution made by the court of Yuhua District of Changsha City. As the defender of the defendant Chen, Lawyer Liu Mou's defense opinion is that Chen Mou has no criminal record but assists the defendant Li Mou to manage the financial affairs. Her work is not directly related to prostitution. The salary and commission of the salesmen and prostitutes are managed and arranged by the store manager. Chen is only a collection tool and has no ability to manage the financial affairs alone. He should be identified as an accomplice. "The prostitution place set up in this case is also conducive to reducing rape and other vicious crimes, and is conducive to social stability.".
It is this kind of defense that causes the public prosecutor's dissatisfaction. After the trial, Yuhua District Procuratorate, the case public prosecution organ, issued a work contact letter to Changsha Judicial Bureau, pointing out that Liu Mou's lawyer's public opinion on "prostitution is conducive to reducing the incidence of rape and other malignant crimes, and is conducive to maintaining social stability", which is contrary to the relevant laws and regulations, and does not conform to the words and deeds of a lawyer.
The court refuted this: the lawyer's defense view is not correct
According to the judgment, in response to the defense opinion of the defendant Chen's defender that 'the prostitution ground set up in this case is conducive to the reduction of rape and other vicious crimes, and is conducive to social stability', the court of Yuhua District held that 'Chen and the defendant Li and others, regardless of social morality and fashion, engaged in illegal and criminal activities of prostitution, seriously damaging the social atmosphere, this defense The court will not accept opinions that are contrary to the law, the principles and the circumstances. '
That is to say, the presiding judge pointed out in court that prostitution and whoring are illegal and criminal acts, which should be combated according to law, and the defense opinions of the defenders are not correct.
As for 'the defendant Chen should be identified as an accomplice and other defense opinions', Yuhua District Court held that, in view of Chen's assistance to the defendant Li in managing the financial affairs, but he did not participate in the operation of the store, and Chen did not participate in the management of prostitutes and soliciting prostitutes' salesmen and other activities that directly allowed others to engage in prostitution, which played a relatively small role, it can be considered that Chen played a role in joint crime To play an important role, it can be identified as an accomplice. The above defense opinions are consistent with the objective facts, and are adopted by the court. In the first instance of the court, Chen was sentenced to one year's imprisonment and 30000 yuan for the crime of prostitution.
Lawyer's opinion: the lawyer has immunity from court speech
On September 15, 2017, Liu Mou, the lawyer concerned, made a statement to Changsha Judicial Bureau, pointing out that in the morning of May 16, 2017, in the court trial of Yuhua District Court, he defended Chen Mou as an accomplice and leniently. Chen is only a cashier, and should be identified as an accomplice according to law, while the public prosecution organ has charged her as the principal offender. After the defendant Li's defender said that "prostitution has been legalized in many countries", Lawyer Liu then issued the defense opinion that "prostitution does harm the social atmosphere, but objectively reduces the crime rate of rape and other violent crimes, which is conducive to social stability".
After lunch, a court session was held. After the collegial panel, the presiding judge delivered the sentence in court. He did not adopt the public prosecution opinion that the public prosecution accused Chen as the principal offender, and adopted the defense opinion of the accessory of the defender. According to Liu, the prosecutor's view of public prosecution was not adopted. The female prosecutor was a little emotional. After the adjournment, she asked Liu which institute he was from and said that she would send a judicial recommendation letter to the judicial bureau to propose punishment.
After the court session, Liu reported to the leader of the law firm verbally. The leader of the law firm thought that the speech was not illegal.
Liu believes that both sides of the prosecution and the defense are opposing positions, and no one can guarantee that their views are correct. "Prostitution reduces the crime of rape and violence, which is conducive to social stability" is his own subjective cognition, "even if my opinion is not correct, can't the court allow the defenders' opinion to be wrong?" and the lawyer law grants the immunity of the lawyer's court speech -- "Article 37 of the lawyer law clearly states:" the attorney's agent and defense opinions expressed in the court Not subject to legal action. Except for the statements that endanger national security, maliciously slander others and seriously disturb the order of the court. '
Therefore, Lawyer Liu believes that his speech is not illegal. The judicial recommendation letter of Yuhua District procuratorate requires that he be punished without any basis, which is obvious professional revenge.
Opinion of lawyer circle: to send a letter abusing public power is revenge in disguise
"How could Changsha Judicial Bureau punish lawyers?" Yang Shuwen, a lawyer from Hunan Huili law firm, said in an interview with the Chinese Business Daily yesterday that the lawyer's defense opinions in the court have exemption provisions, but the public prosecutor's act of sending official letters is a joke.
Zhang Xinian, a public welfare lawyer, has a more incisive point of view: 'Yuhua District procuratorate should bear legal responsibility for its illegal acts! This chapter is covered to the death!' Zhang said, to put it another way, even if there is a problem with the speech of the lawyer in court, it belongs to the scope of court review. In court, the status of the prosecution and the defense is equal, instead of acting as the opposite Procuratorate in court!
A number of lawyers believe that the prosecutor's office can not go up. The Procuratorate's action has been suspected of illegal abuse of power. The bar association should firmly respond and even ask the supervisory committee to investigate. It is really inappropriate for lawyers to make such statements in court. However, lawyers are not prosecuted for their statements in court, except for politically incorrect statements that endanger national security. In the case of failure of public prosecution, the procuratorate will send a letter with high will, which is an act of retaliation against the defenders and cannot be allowed. Prosecutors can send letters to ask for 'punishment' of lawyers by using the public power of procuratorial organs. Can lawyers send letters to ask for punishment of prosecutors? This one-way act of using the power of public power is a kind of tyranny of public power.
'the procuratorate sent a letter to interrogate the lawyer for offside behavior'
Then, can the procuratorate ask the judicial administrative department to investigate the responsibility of lawyers' improper defense opinions in court?
Yesterday, a number of legal workers told the Chinese business daily that it was offside for the procuratorate to send an official letter to question lawyers.
First of all, it is not appropriate for the lawyer to defend the defendant with the view that "prostitution is conducive to the reduction of rape and other vicious crimes", which is not convincing from the perspective of facts and cannot be supported by the court. From the perspective of defense strategy, such defense opinions are actually meaningless.
Secondly, Yuhua District Procuratorate's sending a letter is offside. In fact, the "working contact letter" issued by the procuratorate requires the judicial bureau to deal with Lawyer Liu and "reply" the result. Sending a letter to ask the judicial administrative department to deal with the lawyer's administration, in fact, it is offside that becomes the lawyer's manager, which may hurt the criminal litigation pattern of equal confrontation between prosecution and defense. Although the procuratorial organ is the legal supervision organ, it should restrict the lawyer's defense speech only on the grounds of public order and good custom. Such supervision right should be restrained, and it is better to convert it into defense.
Finally, the most praiseworthy thing in this incident is the judgment response of Yuhua District Court. First, we fully respect the opinions of lawyers and show the fairness of the procedure to the society. This is the so-called 'in legalism'. Secondly, it reflects the due performance of the judge's duties. It's not suitable to discuss in the field of legislation in the judicial process, let alone because they don't agree with the opinions of lawyers. Although the judge disagreed with the lawyer's statement that "prostitution is conducive to reducing rape", he still adopted his other factual defense opinions, which shows the rational, objective and impartial image of the judiciary.