1. Introduction

According to Article 130 of the Constitution of the People’s Republic of China, the defendant has the right to defence. Article 130 provides that the people qualified to defend include lawyers, people recommended by people’s organizations or companies where the criminal suspect (defendant) works, and guardians, relatives or friends of the criminal suspect (defendant). However, it is not enough to be a criminal defender although you are a qualified person in that there are some conditions that could deny the qualification of the defender. Then, what are the circumstances where the defender would be disqualified? The author has done a comb to negative conditions of the defender qualification, in accordance with the Criminal Procedure Law of the People’s Republic of China, Law of the People’s Republic of China on lawyers, Law of the People’s Republic of China on Judges, Law of the People’s Republic of China on Public Procurators, Measures for Penalties for Illegal Acts of Lawyers and Law Firms, Rules for the Recognition and Handling of Conflict of Interest in Lawyers’ Practice of Shanghai Lawyers Association and other laws and regulations.

2. Negative conditions for the qualification of a defender in Criminal Procedure Law of the People’s Republic of China

a. A person who is under criminal punishment or who is deprived of restriction of personal freedom according to law shall not serve as a defender.

b. A person who has been dismissed from public office or whose practicing certificate as a lawyer or notary has been revoked may not serve as a defender, except those who are close relatives of the guardian of the criminal suspect or defendant.

c. During the investigation, any person recommended by the people’s organization or the company where the criminal suspect (defendant) works, the guardian or relative of the criminal suspect (defendant) shall not serve as a defender. At this stage, only a lawyer can be entrusted as the defender.

3. Negative conditions for the qualification of a defender in Law of the People’s Republic of China on lawyers

a. A lawyer who serves as a member of the standing committee of the people’s congress at any level shall not engage in the business of agency AD litem or defence during the term of office.

b. Clients may refuse to continue to defend or represent themselves by the lawyer he has entrusted.

c. Lawyers who once served as a judge or prosecutor shall not act as agent AD litem or defender within two years after leaving from the office of a people’s court or a people’s procuratorate.

d. The criminal suspects (defendants) have legal affairs which conflict with the interest of defenders or their relatives.

e. People whose lawyer’s practice certificate has been revoked shall not serve as a defender or agent AD litem, except if they are the guardian or near relative of a party in a criminal, civil or administrative action.

4. Negative conditions for the qualification of a defender in Law of the People’s Republic of China on Judges

a. A judge shall not act as an agent AD litem or defender in the capacity of a lawyer within two years after leaving office in a people’s court.

b. After judges resign from a people’s court, they shall not act as agent AD litem or defender in handling cases in the court where they previously served, with the exception of acting as a guardian or a close relative of the parties involved in litigation or defending the case.

c. After judges have been dismissed, they shall not act as agent AD litem or defender, with the exception of acting as a guardian or a close relative of the parties involved in litigation or defending the case.

5. Negative conditions for the qualification of a defender in Law of the People’s Republic of China on Public Procurators

a. A public procurator shall not act as an agent AD litem or defender in the capacity of a lawyer within two years after leaving office in a people’s procuratorate.

b. After public procurators resign from a people’s court, they shall not act as agent AD litem or defender in handling cases in the procuratorate where they previously served, with the exception of acting as a guardian or a close relative of the parties involved in litigation or defending the case.

c. After public procurators have been dismissed, they shall not act as agent AD litem or defender, with the exception of acting as a guardian or a close relative of the parties involved in litigation or defending the case.

6. Negative conditions for the qualification of a defender in Measures for Penalties for Illegal Acts of Lawyers and Law Firms

a. Lawyers shall not act as the defender for both the defendant and the victim in the same criminal case, or act as the defender for two or more criminal suspects or defendants at the same time.

b.  The suspect or defendant has a conflict of interest with the lawyer’s consultation institutions.

c.  Lawyers who once served as a judge or prosecutor undertake, in the capacity of deputy defender, a case handled by the court or procuratorate where they formerly served.

d. Lawyers who once served as a judge or prosecutor serves as an agent AD litem or defender or participates by other means in litigation legal affairs undertaken by the law firm, within two years after leaving office in the people’s court or the people’s procuratorate, which would fall within the scope of the illegal act provided in Item 4 of Article 47 of the Law on Lawyers that “acting as agent AD litem or defender within two years after leaving office in a people’s court or a people’s procuratorate.”

e, A law firm shall not appoint the lawyer of this firm to act as the defender of the defendant or the representative of the victim in the same criminal case.

f. A law firm shall not appoint the lawyer of this firm to act the respective or defender or offer legal service while fully knowing that the lawyer or the relative of the lawyer has a conflict of interest with the entrusted matter.

7. Negative conditions for the qualification of a defender in Rules for the Recognition and Handling of Conflict of Interest in Lawyers’ Practice of Shanghai Lawyers Association

The regulation considers the following circumstances as the direct conflict of interest.

a. In a criminal case, lawyers from the same law firm act as the agent of the victim and the agent or defender of the suspect (defendant) respectively in the same criminal case.

b. In a criminal case, a lawyer of a law firm acts as the defender of the suspect (defendant), while another lawyer from the same firm is the victim.

c. Lawyers from a same law firm, within one year after the termination of the entrustment relationship with a party in an adversarial case or non-litigation case, accept the entrustment of the other party for further hearing in the same case.

d. The same lawyer, within six months after the termination of an adversarial case or non-litigation business, represents the other party in the adversarial case or non-litigation case.

e. A lawyer transferred to another law firm, during the course of representing a party in an adversarial case or in a non-litigation case, while this party is still a client of the former firm. In this case, this lawyer represents the other party in the same adversarial case or non-litigation case in the new law firm or, within six months, represents the other party in the adversarial case or non-litigation case in the new law firm.

f. In a criminal case, a lawyer of the law firm acts as the defender of the criminal suspect (defendant), while the other lawyers of the same law firm are the close relatives of the victim in same case.

Under these circumstances, lawyers shall not accept entrustment or carry out entrustment before obtaining the exemption. Where an entrustment has been accepted, the entrustment relationship shall be terminated immediately.


Post time: Apr-16-2021