韩国时报 中国法治领域的喜人进步

上月的中共十七大在政改方面没有取得什么成果，但其后却迎来一条喜人的消息：在法治领域，中国正向前迈出重要一步。

　　律师法自1997年起实施，用于规范新律师必须经历的程序。全国人大常委已经修改了该法，修订后的法律将在明年6月1日生效。

　　在合法权益方面，尽管需要改进的地方仍然很多，此次所采取的改革是重要的向前一步。根据修订后的律师法，律师所获得的权利大多数是被西方司法视为理所当然的权利。例如，修订后，辩护律师将可以在警方审讯后与委托人会面，无须申请许可，警方将不会监听律师与委托人之间的交谈。

　　目前，律师在和委托人见面之前需要警方的批准，而并不是总是能获准的。

　　值得注意的是，新法没有把国家机密案件排除在外。这就造成了与刑事诉讼法的冲突，刑事诉讼法规定，如果案件涉及国家机密，与被告见面需要审批。据推测，该法将不得不进行修改。

　　根据新法，辩护律师将有资格查看跟案件相关的文件和材料，自己收集证据。他们还有资格向检举人和法庭申请寻找相关证据，让证人在庭上作证。

　　这些听起来是律师和被告的非常基本的权利，但在不存在假定无罪的中国，这些是一个实质性的进步。

　　事实上，诚如官方《中国日报》所言，律师为犯罪嫌疑人辩护的角色在相当长的一段时间里仍然是有争议的……因为犯罪嫌疑人不被假定无罪。一旦被捕了，甚至在定罪以前，嫌疑人就一般被认定为罪犯。

　　因为这种对被告的偏见，辩护律师被视为试图帮助罪犯摆脱惩罚的人。这样，体系不利于辩护律师而有利于检举人。法律代表的权利本身受到质疑。

　　因此，律师发现他们的工作极其困难。他们常常得不到批准和委托人会面，无法获得相干文件。这意味着辩护律师常常是无效率的，除了叫法庭开恩就做不了什么别的事情了。

　　修订后的律师法给律师在庭上的声明提供免责权，但它禁止律师发表“威胁国家安全、诽谤他人和扰乱法庭秩序”的意见。鉴于中国对国家安全的界定十分广泛，这可能约束律师的声明。

　　这次修改无疑代表了律师及委托人权利的改进，但其程度还是不够的。正如人权观察的贝克林（Nicolas Bequelin）所言，原计划是给予律师协会更大的自我监管权力。然而，修改后的法律让它们处于司法部的牢牢控制之下。

　　此外，引入的新条例反映当局对法律活动的关切。它明确禁止律师煽动和挑唆原告采取非法手段解决纠纷，例如造成公众骚乱和危害社会秩序等。

　　但修改后的律师法毕竟带来了更多积极变化的希望，包括中国可能接受直到证明有罪之前假定为无罪的概念。（原标题：中国修改律师法；作者：Frank Ching）

China's Revised Lawyers Law

By Frank Ching

In the wake of the Chinese Communist Party's 17th National Congress last month at which little was achieved by way of political reform comes the welcome news that China is taking a significant step forward in the area of rule of law.

The law on lawyers, first adopted in 1997 to standardize the process that new lawyers in the country have to go through, has been amended by the National People's Congress Standing Committee, with the amended legislation scheduled to come into effect June 1 next year.

The reforms adopted are a significant step forward in the legal rights area, though there is much more that still needs to be done.

The rights given to lawyers under the amended law are mostly taken for granted in Western jurisdictions. For example, under the amended law, defense lawyers will be able to meet with their clients after police interrogation without applying for permission, and the police will not monitor conversations between lawyers and clients.

Currently, lawyers need police permission before they can meet with their clients ― permission that is not always granted.

It is noteworthy that the new law does not make an exception for state secrets cases. This creates a conflict with the Criminal Procedure Law, which specifies that approval to meet with defendants is required in cases involving state secrets. Presumably, this law will have to be amended.

Under the new law, defense lawyers will be entitled to look at files and other materials relating to a case and to collect evidence on their own. They are also entitled to apply to the prosecutors and the courts to seek relevant evidence and to get witnesses to testify in court.

These may all sound like very basic rights for both lawyers and defendants, but in China, where the presumption of innocence did not exist, they are a substantial step forward.

In fact, as the official China Daily said, ``The role of lawyers to defend a criminal suspect has remained controversial for quite some time ... because criminal suspects were not presumed to be innocent. Once a person was arrested, he or she would generally be considered a criminal even before being convicted."

Because of this bias against defendants, defense lawyers were viewed as people who were trying to help criminals escape punishment. Thus, the system was loaded against defense lawyers in favor of prosecutors. The right to legal representation itself was questioned.

Lawyers, therefore, found their work extremely difficult. They were frequently not permitted to meet with their clients and had no access to relevant files. This meant that defense lawyers were frequently ineffective, and could do little more than ask the court for leniency.

While the amended legislation provides for immunity for statements made in court by lawyers, it also prohibits lawyers from expressing opinions that ``threaten state security, defame others and disturb court order." Given China's notoriously wide definition of national security, this may serve to inhibit lawyers when they make statements.

The amendments, no doubt, represent an improvement for lawyers and their clients but they do not go nearly far enough. As Nicolas Bequelin of Human Rights Watch has pointed out, the original plan was to give bar associations greater self-regulatory powers.

However, the amended law keeps them firmly under the control of the Ministry of Justice.

Moreover, a new clause has been introduced in the law that reflects the authorities' concerns about legal activism. It specifically prohibits lawyers from ``inciting and instigating plaintiffs to adopt illegal means such as creating public disturbances and harming public order to solve disputes."

The revised law comes a year and a half after new curbs on lawyers issued by the All China Lawyers Association (ACLA) on the handling of mass cases.

In March 2006, the ACLA issued ``Guiding Opinions" for lawyers who represent protesters and plaintiffs bringing collective lawsuits. Among other things, lawyers were called on to provide confidential information that they had learned from their clients to the authorities. This was most disturbing because, very often, the authorities were the ones that the plaintiffs were taking action against.

The ``Guiding Opinions" also instructed lawyers to seek ``supervision and guidance" of judicial administrative bureaus when handling mass cases involving 10 or more plaintiffs.

The judicial bureaus are part of local governments so that consulting them is, in effect, consulting the local governments whom farmers accuse of confiscating their land with little or no compensation in order to make deals with developers.

But the revised lawyers law raises hope for more positive changes, including the possible acceptance by China of the notion of presumption of innocence until proven guilty.

Frank.ching@gmail.com

Frank Ching is a journalist and commentator in Hong Kong.