When Chinese Criminal Defense Lawyers Become the Criminals
Journal
Criminals
-
2008
Article 6
When
Chinese
Criminal Defense Lawyers Become the Criminals
Copyright c 2008 by the authors. Fordham International Law Journal is produced by The
Berkeley Electronic Press (bepress). http://ir.lawnet.fordham.edu/ilj
When Chinese Criminal Defense Lawyers
Become the Criminals
Yanfei Ran
This Article tries to find some practical resolutions for the problematic situation of Chinese
defense lawyers. Part I introduces how Chinese laws and regulations provide legal protection for
criminal defendants and their defense lawyers, and compares Chinese laws with well-established
international standards. Part II focuses on examples of the problems and difficulties faced by
Chinese lawyers in their defense work. Part III specifically discusses criminal charges that lawyers
face in their practice. Part IV argues that the long-awaited new Chinese Lawyers Law cannot solve
all of the problems or wipe away all obstacles they face. Rather, solving those problems requires
an integrated and comprehensive approach that combines legislation, improved practice, and the
society’s efforts at large.
WHEN CHINESE CRIMINAL DEFENSE
LAWYERS BECOME THE CRIMINALS
Yanfei Ran*
INTRODUCTION
As a Chinese lawyer who has practiced law in China for
twelve years, I used to be enthusiastic about criminal defense
work. After I graduated from law school, I worked as an assistant
at one of the district Beijing procuratorate offices' and I had a
natural calling to criminal law. I enjoyed the challenge of
fighting others in court. However, I experienced so many obstacles
in my work, and I regretfully gave up criminal defense work after
one of my classmates from Peking University School of Law,
Chen, was imprisoned for his criminal defense work.
Around the spring of 2001, after learning that Chen was
detained for representing a criminal defendant, some of my
lawyerclassmates gathered together to discuss how to defend Chen,
who is brilliant and a little bit radical. We learned that he was
being detained because he had offended two prosecutors who
were assigned to his client's corruption case. When those two
prosecutors tried to get information from Chen about his client,
Chen told them, "I am his lawyer, I can not reveal my client's
information to you because I have the privilege not to do so."
Outraged by Chen's arrogant attitude, one of the prosecutors
told Chen, "Let's just wait and see if you can have your
privilege." Five days later, Chen was summoned to the
procuratorate's office and was detained for one year.
When we gathered to celebrate Chen's release after his
imprisonment, his face was extremely dull and his eyes appeared as
though he was still fearful about something. He displayed
hand* LL.B., Central University for Nationalities, 1992; LL.M., Peking University Law
School, 1999; LL.M., Intellectual Property and Information Technology Law, Fordham
Law School, 2007; LL.M Candidate, International Law and Justice, Fordham Law
School, 2009. I am indebted to my family who continue to support and inspire me. I
am also grateful to Professor Martin Flaherty and Elisabeth Wickeri for their
encouragement; I could not have published this Article without their support. My thanks also go
to another who I cannot name here and Ann Lee who did a lot of editing work for this
Article.
1. "Procuratorate" is another term for a government prosecutor or district
attorney.
cuff marks on his wrists. We learned that he was sentenced to
one year for "falsification of evidence." He did not appeal
because nearly one year had already passed before he was able to
learn of his sentence. He told us he was tortured in the
detention center and was transferred to a prison hospital after his
family members used some "back door" measures to help him. Even
in the hospital, he was tied to a bed for most of the day, even
though he was not sick or mentally ill. He was so desperate
about his environment that he almost tried to commit suicide a
few times. Without the nurses' kindness and his own longing to
see his one-year-old son and his wife, we would never have seen
him again.
I was shocked by Chen's experience. His father-in-law was a
high-ranking officer in the Marine Army Force. Chen was born,
raised, and educated in Beijing. He had strong and wide
connections' in Beijing, where networks are sometimes more
important than laws. If Chen was not rescued when he met trouble,
what could I do?3
Chen is only one of many Chinese criminal defense lawyers
who have been harassed, intimidated, and prosecuted simply for
doing their jobs. Nobody knows how many lawyers have been
put through this predicament. Since the lawyer's' system was
restored in 1979, criminal defense lawyers have been hindered by
all kinds of difficulties and problems in their work.4 As early as
1997, scholars summarized these issues in a symposium on
criminal defense and justice held in Shenzhen.5 Drawing Chinese
defense lawyers out of this predicament has long been the (...truncated)