When Chinese Criminal Defense Lawyers Become the Criminals

Fordham International Law Journal, Dec 2008

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.

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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)


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Yanfei Ran. When Chinese Criminal Defense Lawyers Become the Criminals, Fordham International Law Journal, 2008, Volume 32, Issue 3,