Reflection on Article 311 of the Interpretation of the Criminal Procedure Law: Based on the Compilation of Essays on “Does the Court Have the Right to Restrict the Replacement of Defense Lawyers”
Compiled by Zhou Zichuan, Handing United Law Firm, June 3, 2024, Henan
I. Introduction of the Issue
On May 24, 2024, a video of lawyer Zhang Qingfang from Beijing Handing United Law Firm being carried out of the Haikou Intermediate People’s Court drew widespread attention from the legal community. The background of this event reveals that Zhang Qingfang was appointed as the defense lawyer for the defendant Chen Xianqing. After submitting the necessary paperwork to the court, he was informed that the collegiate bench did not approve his appointment because Chen Xianqing had already changed lawyers twice. Zhang Qingfang argued that as long as the defendant does not use changing lawyers as a pretext to unjustifiably obstruct the trial, he has the right to change lawyers as many times as he wants, which is outside the court’s jurisdiction. Moreover, Chen Xianqing was only replacing one of his current two lawyers, and Zhang’s involvement would not require additional preparation time from the court or affect the trial schedule. On the morning of May 24, Zhang entered the Haikou Intermediate People’s Court, where five co-defendants were scheduled for trial at 9:10 AM. He hoped to communicate with the collegiate bench before the trial. However, the presiding judge delayed meeting him and ordered court police to forcibly remove Zhang from the courtroom.
The court’s actions were based on Article 311, Paragraph 1 of the “Interpretation of the Supreme People’s Court on the Application of the Criminal Procedure Law of the People’s Republic of China” (hereinafter referred to as the “Interpretation”), which states: “Generally, the defendant should not change defense lawyers more than twice during one trial procedure.” However, according to the lawyers involved in the case, Chen Xianqing initially appointed Tan Miao and Lin Wencai as his defense lawyers, later replacing them with Wang Dianxue and Wang Faxu (the first change). The current change involved replacing Wang Dianxue with Zhang Qingfang (the second change), which did not violate the stipulated rule. Furthermore, prior to Zhang’s involvement, there had been instances of interference by the Haikou Intermediate People’s Court with the defense lawyers involved in the case. Thus, some have questioned whether the issue is not whether the Haikou Intermediate People’s Court has the authority to limit the replacement of defense lawyers, but whether it has correctly and in good faith understood and applied the relevant rule and whether it can continue to impartially adjudicate Chen Xianqing’s case.
The forced removal of lawyer Zhang Qingfang by the Haikou Intermediate People’s Court has sparked deeper discussions on how Article 311 of the “Interpretation” should be understood and the practical issues it may bring. This article attempts to analyze the correct interpretation of Article 311 of the “Interpretation,” the issues it raises in practice, and possible measures to address these issues based on discussions by legal professionals.
II. Correct Interpretation of Article 311, Paragraph 1 of the “Interpretation”
Reviewing the revision history of the “Interpretation,” it is evident that the controversial provision was newly added in the 2021 revision. The Supreme People’s Court’s drafting group explained in the “Understanding and Application of the ‘Interpretation of the Criminal Procedure Law’” that the provision was added to address frequent changes of defense lawyers by defendants, which could cause repeated trials and excessive delays, thus impacting the smooth conduct of trials. Therefore, in non-trial periods, appropriate regulations were made to ensure both the protection of defense rights and trial efficiency. It was deemed that allowing defendants to change defense lawyers twice within one trial procedure could sufficiently safeguard their defense rights.
From the drafting group’s explanation, we can infer two key points:
- The purpose of the provision is to prevent repeated trials and excessive delays caused by frequent changes of defense lawyers, which could impact the smooth conduct of trials.
- The provision is intended to be applied within the context of adequately protecting defense rights. Therefore, the correct interpretation of Article 311, Paragraph 1 should be based on these principles rather than being applied arbitrarily by those enforcing it. Specifically:
- Limiting “During Trial Procedures”: The restriction on the number of times a defendant can change defense lawyers should be limited to “during trial procedures.” It has been noted that there are no restrictions on changing defense lawyers during the investigation or prosecution stages in China. The restriction was added specifically for the trial stage to prevent disruptions and ensure continuous, uninterrupted trials. This limitation aims to prevent malicious delays and ensure trial efficiency.
- Understanding “Generally No More Than Twice”: Based on the principle of safeguarding defense rights, judicial personnel should exercise their interpretation and discretion appropriately. “Generally no more than twice” should be narrowly interpreted to exclude situations that do not hinder the continuous conduct of the trial. If the change of defense lawyers does not impact trial continuity, it should not be restricted. This interpretation aligns with the provision’s intent to balance defense rights with trial efficiency.
- Acknowledging the Supervisory Role of Defense Rights: The Criminal Procedure Law grants defense lawyers rights such as meeting clients, accessing case files, collecting evidence, and filing complaints to supervise and restrict judicial powers. This ensures fair and rational handling of cases. Thus, understanding Article 311 should not overlook the supervisory and restrictive nature of defense rights.
III. Issues Raised by Article 311 of the “Interpretation”
Even with the official considerations behind the 2021 revision of the “Interpretation,” the provision has led to several judicial “anomalies” and discussions about its institutional positioning and the limitation on the number of defense lawyers. Issues raised by Article 311 include:
- Issues Within Article 311, Paragraph 1:
- Understanding and Applying “Generally”: The term “generally” leaves room for interpretation and subjective judgment, lacking clear guidelines for what constitutes exceptions.
- Absence of Exceptions: The provision lacks a clear definition of what constitutes an exception to the “generally” rule, leading to potential inconsistencies in its application.
- Ambiguity of “Two Times”: The term “two times” is unclear whether it refers to instances or individual changes, causing potential disputes in practice.
- Vague “One Trial Procedure”: The term “one trial procedure” could lead to different interpretations regarding its scope, whether it refers to a single court level or multiple levels of the trial process.
2. Judicial Overreach: Many argue that the provision goes beyond the scope of judicial interpretation, essentially creating new law, which should be within the domain of the legislature.
3. Lack of Justification: The provision seems to address a non-existent problem, as frequent lawyer changes were not a significant issue before the provision was implemented.
4. Potential for Abuse: The provision allows for judicial discretion, which could be misused to unjustly limit defendants’ rights.
5. Inconsistency with Other Norms: The provision conflicts with other legal norms, such as the Lawyer Law and the principle of equal treatment in criminal proceedings.
6. Structural Imbalance: The provision could create an imbalance between the prosecution and defense, as there are no similar restrictions on the prosecution’s ability to change or add prosecutors.
7. Unreasonable Limits on Defense Lawyers: The existing limit on the number of defense lawyers a defendant can appoint is seen as unreasonable, especially in complex cases.
IV. Possible Improvement Measures
Based on the discussions, the following measures could address the issues raised by Article 311:
- Correct Interpretation and Good Faith Application: Properly interpreting and applying the provision within its intended scope, limiting its application to situations that do not disrupt trial continuity.
- Revision or Deletion: Revising or deleting Article 311, Paragraph 1 to align with the principles of protecting defense rights and ensuring trial efficiency.
- Lifting Limits on Defense Lawyers: Removing or relaxing the statutory limit on the number of defense lawyers a defendant can appoint.
- Respecting the Defendant’s Right to Appoint Defense Lawyers: Minimizing judicial interference in the defendant’s choice of defense lawyers.
- Introducing Hearing Procedures for Changes: Implementing procedures for hearings to review requests for changing defense lawyers, ensuring fairness and transparency.
- Using Case Guidance for Legal Interpretation: Utilizing the case guidance system to provide clear interpretations of legal issues, reducing reliance on potentially overreaching judicial interpretations.
V. Conclusion
The Haikou Intermediate People’s Court incident highlights deeper issues regarding the interpretation and application of Article 311 of the “Interpretation.” It has sparked discussions on judicial interpretation, the protection of defense rights, and the broader legal framework. Addressing these issues requires a combination of correct interpretation, possible revisions, and a respect for the defendant’s rights to ensure fairness and efficiency in the judicial process.
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