Legal provisions of avoidance system

Subjectivity of law: avoidance refers to a system in which judges and other relevant personnel withdraw from litigation according to law when there is a situation that may affect the fair trial of a case. The challenge system is one of the basic principles of modern litigation system, which is of great significance for ensuring the correct exercise of judicial power, ensuring judicial justice and eliminating the doubts of the parties. How does the law define the challenge system? 1. Article 44 of the Civil Procedure Law stipulates that recusal applies to: judges, clerks, translators, expert witnesses and inspectors. According to the Provisions of the Supreme People's Court on Several Issues Concerning the Implementation of the System of Judge's Withdrawal in Litigation, it includes presidents, vice presidents, members of judicial committees, presidents, vice presidents, judges, assistant judges, people's jurors, clerks and executors of people's courts at all levels. 2. The reason for the judge's withdrawal is that he has a specific identity relationship with the parties or agents ad litem, has an interest in the case, or has other relationships that may affect the fair trial of the case. As long as the judge has one of the following circumstances, the parties may apply for withdrawal: (1) privately meet with one of the parties to the case and their agents ad litem and defenders; (2) Recommend or introduce agents ad litem or defenders for the parties, or introduce lawyers or other personnel to handle cases; (3) Asking for or accepting property or other benefits from the parties to the case and their clients, or asking the parties and their clients to reimburse expenses; (4) Accepting loans from the parties and their trustees, borrowing vehicles, communication tools or other articles, or soliciting or accepting benefits from the parties and their trustees in purchasing commodities and decorating houses; (five) there are other misconduct, which may affect the fair trial of the case. (6) Being a party to the case or having close relatives with the party; (seven) I or a close relative has an interest in the case; (8) Having served as a witness, interpreter, expert witness, inspector, agent ad litem or defender in this case; (9) Having the relationship of husband and wife, parents, children or brothers and sisters with the agent ad litem or defender in this case; (10) has other interests with the parties to the case, which may affect the fair trial of the case. 3. Avoidance methods and decision-making power avoidance can be divided into self-avoidance and application avoidance. Voluntary withdrawal refers to the system that judges and others think that there is a relationship between themselves and the case that may affect the fair trial of the case and voluntarily withdraw from the trial of the case in accordance with the law. Application for withdrawal refers to the system that the parties have the right to apply to the court for withdrawal from litigation because they think that the judge and other circumstances will affect the fair trial of the case. If a party applies for withdrawal, it shall explain the reasons and put forward it at the hearing; If the reasons for withdrawal are known after the trial of the case begins, they may also be put forward before the end of the court debate. Before the people's court makes a decision on whether to withdraw, the person who has been applied for withdrawal shall suspend his participation in the case, unless the case requires emergency measures. The people's court shall make a ruling orally or in writing within three days after the application is filed. If the applicant refuses to accept the decision, he may apply for reconsideration once after receiving the decision. During the period of reconsideration, the person who applies for withdrawal will not stop participating in the work of this case. The people's court shall make a reconsideration decision on the application for reconsideration within three days and notify the applicant for reconsideration. The withdrawal of the president as the presiding judge shall be decided by the judicial Committee; The withdrawal of the judge is decided by the president; The withdrawal of other personnel shall be decided by the presiding judge. When implementing the challenge system, we should not only protect the litigant's litigation rights, eliminate their reasonable doubts and ensure the fair trial of the case, but also avoid and punish the malicious application for challenge, ensure the smooth progress of the lawsuit and further improve the litigation efficiency and judicial credibility. Legal objectivity: withdrawal in criminal proceedings refers to a litigation system in which judges, prosecutors and investigators have certain interests or other special relationships with the cases they undertake or the parties to the cases, which may affect the fair handling of criminal cases, so they cannot participate in the trial, prosecution and investigation of cases. At present, there are still many problems in China's criminal challenge system, which need to be further improved. There are five problems in the criminal challenge system. First, the subject matter is not wide enough. Close relatives mentioned in Article 82 of the Criminal Procedure Law refer to husbands, wives, fathers, mothers, sons, daughters, brothers and sisters. Judging from the judicial practice, the provisions of the Criminal Procedure Law on the scope of relatives and close relatives are far from covering special relationships such as in-laws and other collateral blood relations closely related to them, such as grandparents, grandparents, grandchildren and grandchildren. Second, the burden of proof is not divided. The law does not clearly stipulate who will bear the burden of proof in several cases stipulated in the criminal challenge system, but according to the general litigation principle of "whoever advocates and bears the burden of proof", the burden of proof should be on the parties. But in practice, when the parties are not clear about the basic situation of the case undertaker, how can they provide sufficient evidence to prove that the case undertaker meets the withdrawal conditions? Third, change the provisions of jurisdiction. The current challenge system maintains the neutrality and impartiality of a single judicial official. However, if the principal responsible person is interested in the case, or even related to the case, it is difficult for anyone in the unit to remain neutral when handling the case, and it is difficult to generate credibility for the conclusions drawn from law enforcement. However, China's criminal procedure law only stipulates that the individual withdraws the lawsuit, but it does not stipulate whether the main person in charge will change the jurisdiction after the individual withdraws the lawsuit, nor does it stipulate that the unit withdraws the lawsuit (that is, "all the lawsuits"). Fourth, accountability is not strict. Although the Criminal Procedure Law stipulates that the parties apply for withdrawal and the judicial personnel voluntarily withdraw, it does not strictly stipulate the responsibility that the judicial personnel should bear if they do not withdraw. Although Article 19 1 of the Criminal Procedure Law stipulates that if the court of second instance finds that the judge should withdraw during the trial, it shall revoke the original judgment and send it back for retrial, but this provision is only a restriction on the case itself and does not involve any consequences for the individual. The Interim Measures for the Avoidance of Public Prosecutors and the Measures for Judicial Disciplinary Measures of People's Courts, etc., although they stipulate corresponding punishment, only stipulate criticism and education, organizational adjustment or disciplinary action, and the responsibility is too light to stop the intentional violation of the avoidance system. Fifth, communication avoidance is not clear. In recent years, personnel exchanges within judicial organs have increased, but the avoidance of such exchanges has not been clearly stipulated in the Criminal Procedure Law. For example, those who used to be investigators of public security organs can serve as prosecutors in this case after being transferred to procuratorial organs; Whether the prosecutor in charge of case prosecution can be the judge of the case after being transferred to the court. ■ Perfection of the criminal challenge system The above problems of the criminal challenge system have affected the fairness of judicial activities. We should try our best to design a reasonable criminal challenge system in line with China's national conditions based on the principle of safeguarding the legitimate rights and interests of the parties to the maximum extent. First, expand the scope of avoidance. China is a country with a feudal history of more than 2,000 years, and the idea of valuing emotion over law is deeply rooted. People attach great importance to blood relationship, and the relationship between people is extremely complicated. The challenge system in criminal proceedings should expand the scope of close relatives and try to include human feelings and family ties that may affect judicial justice. The Supreme People's Court's "Several Provisions on Strictly Implementing the System of Judge's Avoidance" extends the withdrawal of judges to the provisions of the Criminal Procedure Law, stipulating that close relatives include "lineal blood relatives, collateral blood relatives and in-laws within three generations". The author believes that it is appropriate to change the reason of "being a party to this case or a close relative of a party" stipulated in the Criminal Procedure Law to "being a party to this case or having lineal blood relatives, collateral blood relatives and in-laws within three generations". Second, clarify the burden of proof. The burden of proof of challenge system in criminal proceedings is different from the principle of "whoever advocates gives evidence" in civil proceedings, and it is also different from the burden of proof borne by judicial organs in criminal proceedings and administrative organs in administrative proceedings. In my opinion, there are problems that the burden of proof is divided differently due to different subjects, different situations and different avoidance methods. First of all, from the subject, according to the provisions of Article 28 of the Criminal Procedure Law, the subjects of criminal challenge include judges, prosecutors, investigators, parties and their legal representatives. The scope of parties is also clearly defined in China's criminal procedure law, including criminal suspects, defendants, victims, private prosecutors, plaintiffs in incidental civil actions, defendants and unit parties. In criminal proceedings, the law gives them the right to request withdrawal, but based on different identity characteristics, their burden of proof for withdrawal is different. If a criminal suspect or defendant is detained and applies for withdrawal, his personal freedom is restricted. Therefore, he/she can only apply for withdrawal and explain the reasons, and should not bear the burden of proof. At this time, the burden of proof should be borne by the judicial organs. If the other party can provide reliable and sufficient evidence for the application for withdrawal, the judicial organ shall investigate and verify the reasons for withdrawal from the respondent, and if necessary, it may conduct its own investigation to determine whether there is withdrawal. For those who apply for withdrawal on their own, the scope of prosecutors as stipulated in the Interim Measures for the withdrawal of prosecutors is wide, including prosecutors, clerks, judicial administrative personnel, judicial police, translators hired or appointed by the procuratorate, judicial experts and inspectors. Because these personnel are familiar with the legal provisions and the legal consequences of withdrawal, taking into account the legislative spirit of the legal provisions, withdrawal is also the legal obligation of judicial personnel under legal circumstances. Therefore, when the above-mentioned personnel encounter avoidance situations, most of the burden of proof for avoidance should be borne by themselves, and the relevant departments of the judicial organs are only responsible for verification. Secondly, judging from the situation, according to the provisions of China's criminal procedure law, there are six situations in which judicial personnel withdraw: (1) they are the parties to the case or their close relatives; (2) He or his close relatives have an interest in the case; (3) Having served as a witness, expert witness, defender or agent ad litem in this case; (4) Having other relations with the case, which may affect the fair handling of the case; (five) accept the parties and their clients to treat and give gifts; (6) Meeting the parties and their clients in violation of regulations. In view of these six situations, we should also treat them differently when reviewing the application for withdrawal. In the first case, it is a close relative of the criminal suspect or defendant or in the third case. Because it is clearly recorded in the case file, the burden of proof should be borne by the judicial officer or case-handling person who applied for withdrawal; In the first case, judicial personnel are close relatives of parties other than criminal suspects and defendants. In the second and fourth cases, the parties who apply for withdrawal can produce evidence or obtain evidence by the judicial organs themselves; For the fifth and sixth cases, unless the applicant has sufficient evidence, such as audio, video, pictures, photos and other original materials of the acts listed in Articles 5 and 6, the burden of proof must be borne by the relevant departments of the judicial organs, because these two cases may not only affect the fair trial of the case, but also have the problem of whether the judicial personnel violate the law or discipline. Once verified, the applicant will be exempted. Thirdly, from the way of view, China's criminal challenge system actually includes three challenges, namely, application challenge, voluntary challenge and instruction challenge. The parties and their legal representatives apply for withdrawal; Self-avoidance is caused by public security organs, procuratorates, courts and other investigators and participants themselves; Instruction avoidance is because there are reasons for avoidance, and the relevant personnel have not avoided it. After being discovered by departments or department heads such as the Public Security Law, he directly decided to withdraw. The burden of proof for revoking an order lies entirely with the judicial organs. The discipline inspection and supervision department of the judicial organ or the investigation and supervision department of the procuratorial organ shall conduct necessary investigation and evidence collection, confirm whether the case undertaker meets the six situations stipulated in the Criminal Procedure Law, and decide whether the relevant personnel should withdraw according to the investigation conclusion. Third, clear jurisdiction avoidance. In judicial practice, when the result of a case involves the private interests of the heads of local state organs or competent departments or even the interests of local departments, when the judicial organs exercise jurisdiction over the case, it is likely to damage fair law enforcement and trial. If the parties have reasonable doubts about the overall impartiality of the judicial organs, the law should give the parties the right to apply for "overall withdrawal of the lawsuit" and change their jurisdiction. The premise of establishing the system of applying for change of jurisdiction by the parties should be that the original jurisdiction immediately and unconditionally transfers the case to the higher authorities for handling after the parties apply. It can be specified that if a case involves the private, local or departmental interests of the principal responsible person of a local state organ or competent department, and the judicial organ with jurisdiction is not suitable for exercising jurisdiction, the parties concerned may request the judicial organ at the next higher level to investigate and hear the case, or the judicial organ at the next higher level shall designate jurisdiction. Fourth, strict accountability. Deliberately violating the challenge system shows that the judicial personnel have subjective motives of bending the law and deliberately bending the law. After violating the challenge system, the judicial personnel's duty behaviors, such as taking evidence and judging, are likely to have a negative impact on judicial justice. For this serious behavior, it is not enough to give internal punishment to each department. Therefore, legislation should clearly stipulate that judicial personnel who intentionally violate the challenge system shall be given administrative sanctions, and those who constitute a crime shall be investigated for criminal responsibility according to law. Any official act that intentionally violates the challenge system is illegal and invalid. Fifth, improve communication avoidance. In order to prevent judicial personnel from being preconceived, the criminal procedure law should further improve the relevant provisions that "those who have performed their judicial duties in the early stage of litigation can no longer perform their subsequent judicial duties". First, after the investigators of public security organs are transferred to procuratorial organs and people's courts, they cannot serve as prosecutors and judges at the same time in the same case; Second, the internal investigators of procuratorial organs cannot serve as prosecutors in the same case; Third, after being transferred to the people's court, the prosecutor cannot serve as a judge in the same case investigated, arrested and prosecuted by him; Fourth, after the public security bureau chief and procurator-general who were decided to be revoked communicated to the court, the original place involved was designated by the people's court at a higher level.