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Notice of the Supreme People's Court and the Ministry of Justice on Lawfully Protecting Lawyers' Rights in Proceedings and Regulating Lawyers' Participation in the Trial Activities [Effective]
最高人民法院、司法部关于依法保障律师诉讼权利和规范律师参与庭审活动的通知 [现行有效]
【法宝引证码】

 
Notice of the Supreme People's Court and the Ministry of Justice on Lawfully Protecting Lawyers' Rights in Proceedings and Regulating Lawyers' Participation in the Trial Activities 

最高人民法院、司法部关于依法保障律师诉讼权利和规范律师参与庭审活动的通知

(No. 36 [2018] of the Ministry of Justice) (司发通[2018]36号)

The higher people's courts and justice departments (bureaus) of all provinces, autonomous regions and municipalities directly under the Central Government; and the Production and Construction Corps Branch of the Higher People's Court of Xinjiang Uygur Autonomous Region and Justice Bureau of Xinjiang Production and Construction Corps: 各省、自治区、直辖市高级人民法院、司法厅(局),新疆维吾尔自治区高级人民法院生产建设兵团分院、新疆生产建设兵团司法局:
For the purposes of further protecting lawyer's rights in proceedings, regulating lawyers' participation in the trial activities, and fully maximizing lawyers' role in protecting the lawful rights and interests of parties, and guaranteeing the correct implementation of laws and judicial fairness, you are hereby notified of the relevant issues as follows. 为进一步保障律师诉讼权利,规范律师参与庭审活动,充分发挥律师维护当事人合法权益、维护法律正确实施和司法公正的职能作用,现就有关事项通知如下。
I. The people's courts at all levels and their staff members shall respect and protect lawyers' rights in proceedings, strictly implement the statutory procedures, treat all litigants equally, reasonably allocate the time for questioning, cross-examination, statement, argument and defense for all parties, and fully request the comments of lawyers. A judge shall not arbitrarily interrupt or stop any attorney's normal questioning, cross-examination or opinions in defense and representation on the determination of the facts of the case and application of law; however, a presiding judge or sole judge may, in light of the reality, stop those attacking the Party's and the state's political system and legal system, opinions issued that have reached consensus at the pretrial conference, those irrelevant to a case or insulting, defaming or threatening others, or those intentionally disrupting the order of the court. Where a lawyer obviously raises leading questions and the public prosecutor raises an objection, the presiding judge or sole judge may stop it upon examination and confirmation.   一、各级人民法院及其工作人员要尊重和保障律师诉讼权利,严格执行法定程序,平等对待诉讼各方,合理分配各方发问、质证、陈述和辩论、辩护的时间,充分听取律师意见。对于律师在法庭上就案件事实认定和法律适用的正常发问、质证和发表的辩护代理意见,法官不随意打断或者制止;但是,攻击党和国家政治制度、法律制度的,发表的意见已在庭前会议达成一致、与案件无关或者侮辱、诽谤、威胁他人,故意扰乱法庭秩序的,审判长或者独任审判员可以根据情况予以制止。律师明显以诱导方式发问,公诉人提出异议的,审判长或者独任审判员审查确认后,可以制止。
II. A lawyer participating in the trial shall not keep audio and video recordings, take photos of the trial activities or use mobile communication tools to disseminate trial activities, or carry out any other conduct in violation of court rules and disobeying court orders. Where a lawyer keeps audio and video recordings, takes photos of the trial activities or uses mobile communication tools to disseminate trial activities, the people's court may temporarily seize the equipment and storage media used thereby and delete the relevant content.   二、律师参加庭审不得对庭审活动进行录音、录像、拍照或使用移动通信工具等传播庭审活动,不得进行其他违反法庭规则和不服从法庭指令的行为。律师对庭审活动进行录音、录像、拍照或使用移动通信工具等传播庭审活动的,人民法院可以暂扣其使用的设备及存储介质,删除相关内容。
III. During trial a judge shall respect a lawyer and shall not insult or taunt any lawyer. A presiding judge or sole judge deeming that a lawyer has violated the court rules and court disciplines during trial shall give a warning thereto and impose an admonition thereupon according to the law, and declare adjournment for imposing punishment thereupon if indeed necessary, and shall not take any measure of ordering any lawyer to leave the courtroom or taking any lawyer out of the courtroom in a forced manner, except when a lawyer attacks the Party's and the state's political system and legal system or severely disturbs the court order. Where it is indeed necessary for the judicial police to take measures against a lawyer to maintain the court order, relevant law enforcement acts shall be standardized and civilized, and be conducted within the necessary and reasonable extent. After being ordered to leave the court, forcefully brought out of the court, or fined according to the law, a lawyer that enters into a letter of commitment, and guarantees that he or she will obey the court order and will not disrupt the order of the court any more may continue to serve as the defender and agent ad litem of a same case; and a lawyer that leaves the court without permission, fails to appear in court as scheduled without justifiable reasons, is detained, or is ordered to leave the court or forcefully brought out of the court once again after entering into a letter of commitment shall no longer serve as defender or agent ad litem of any same case. The people's court shall keep video or audio recordings of the whole process of the trial activities, and keep records of the trial activities in violation of the statutory procedures.   三、法庭审理过程中,法官应当尊重律师,不得侮辱、嘲讽律师。审判长或者独任审判员认为律师在法庭审理过程中违反法庭规则、法庭纪律的,应当依法给予警告、训诫等,确有必要时可以休庭处置,除当庭攻击党和国家政治制度、法律制度等严重扰乱法庭秩序的,不采取责令律师退出法庭或者强行带出法庭措施。确需司法警察当庭对律师采取措施维持法庭秩序的,有关执法行为要规范、文明,保持必要、合理限度。律师被依法责令退出法庭、强行带出法庭或者被处以罚款后,具结保证书,保证服从法庭指令、不再扰乱法庭秩序的,经法庭许可,可以继续担任同一案件的辩护人、诉讼代理人;具有擅自退庭、无正当理由不按时出庭参加诉讼、被拘留或者具结保证书后再次被依法责令退出法庭、强行带出法庭的,不得继续担任同一案件的辩护人、诉讼代理人。人民法院应当对庭审活动进行全程录像或录音,对律师在庭审活动中违反法定程序的情形应当记录在案。
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