First, the situation that the judge should avoid. According to Article 1 of the Avoidance Regulations, the parties and their legal representatives also have the right to ask them to withdraw under the following circumstances: (1) They are parties to the case or have lineal blood relatives, collateral blood relatives or in-laws within three generations; (2) He or his close relatives have an interest in the case; (3) Having served as a witness, expert witness, inspector, defender or agent ad litem in this case; (4) Having the relationship of husband and wife, parents, children or brothers and sisters with the agent ad litem or defender in this case; (five) I have other interests with the parties to the case, which may affect the fair handling of the case. This explanation is actually an explanation of "having other relations with the parties to this case, which may affect the fair handling of the case", but it is still followed by the general clause of "having other interests". We believe that this general clause should mean that the parties can provide evidence to prove the emergence of special circumstances, and the emergence of such special circumstances should be regarded as "having other interests with the parties to this case, which may affect the fair handling of the case." In this special case, it is expressly stipulated that: without approval, the judge meets the parties to the case and their agents and defenders in private; Recommend or introduce agents and defenders for the parties to the case, or introduce lawyers and other personnel to handle the case; Accepting property and other benefits from the parties to the case and their clients, or asking the parties and their clients to reimburse expenses; Accept banquets from the parties to the case and their clients, or participate in various activities funded by them; Borrow money from the parties to the case and their clients, borrow vehicles, communication tools or other articles, or accept the interests of the parties and their clients in purchasing goods and decorating houses. We believe that in addition, students, teachers and students, old superiors and comrades-in-arms who can be proved by the parties concerned should also belong to the category of avoiding the subject. At the same time, we believe that the determination of these special circumstances needs a standard problem, that is, when the parties apply for the withdrawal of judges in these circumstances, they need a complete set of withdrawal decision procedures, which will be introduced in detail when discussing the withdrawal procedures later.
Second, leaving office to avoid. According to Article 4 of the challenge provision, if a judge or other court staff serves as an agent ad litem or defender within two years after leaving office, the people's court will not allow it; Two years after leaving office, judges and other court staff serve as agents ad litem or defenders in cases tried by the court of first instance. If the other party raises objections that may affect a fair trial, the people's court shall support them and will no longer allow them to serve as agents ad litem or defenders. Except as a close relative or guardian of a party who represents or defends a lawsuit. Different from this interpretation, article 17 of the Judges Law stipulates that a judge may not act as an agent ad litem or defender as a lawyer within two years after leaving the people's court; After leaving the people's court, a judge may not hold his original post. Are you washing? What's the matter with you? /SPAN>。 "The people's court should support the objection", while the Judges Law stipulates that "it is not allowed to act as an agent ad litem or defender of the court of first instance", that is, directly withdraw without objection. Here, we believe that the parties should be given the right to object, otherwise all withdrawal will also infringe on the legitimate rights and interests of the client. Of course, we should also set up corresponding objection procedures for the objections of the parties, requiring certain evidence to prove that "it may affect a fair trial." Otherwise, if the parties improperly exercise their litigation rights, or put forward excessive emotional demands beyond the legal provisions, they will abuse their litigation rights, while some courts will take too much care of the emotions of some parties and think that they do not meet the prescribed requirements, which will also lead to the reduction of the legal authority of the state, the damage to the professional dignity of judges, and the delay in litigation will lead to the dissatisfaction of the other party.
Third, the withdrawal of agents ad litem and lawyers. According to Article 5 of the challenge provision, if the spouse, children or parents of a judge or other court staff act as agents ad litem or defenders in the court where they are located, the people's court will not allow it. The reason for the judicial interpretation is: "In order to strictly implement the Constitution and laws, further implement and improve the legal provisions, prevent and stop a few judges from handling' relationship cases',' human cases' and' money cases' from the working mechanism, ensure judicial justice, and establish a good image of the people's courts". The author has no doubt about the original intention of the Supreme Court, but he has not considered the legislative technology. Regrettably, however, the interpretation of this article has been confirmed by legislation. The third paragraph of article 17 of the Judges Law stipulates: "A judge's spouse or children may not act as agents ad litem or defenders of the court where they are located." Whether it is judicial interpretation or legislation, the author thinks that there are the following defects: (1) These provisions conflict with the fourth paragraph of Article 3 of the Lawyers Law, depriving lawyers of their right to practice and restricting the right of parties to choose lawyers; (2) Legislation tends to impose state obligations on lawyers. The challenge system is established to make judicial personnel "avoid suspicion", which is the obligation of judicial personnel. Lawyers should not be required to work in a personal way. Try your best to serve the authorizer within the scope of legal provisions and the authorization of the parties. Letting lawyers withdraw is tantamount to letting the parties withdraw, which is unreasonable and unworkable in law and reason. (3) Lawyers' avoidance infringes upon the legitimate rights and interests of criminal suspects, defendants or other parties. Article 125 of our constitution stipulates that "the defendant has the right to defense". Article 1 1 of China's criminal procedure law stipulates: "The defendant has the right to be defended, and the people's court has the obligation to ensure that the defendant is defended." "The defendant has the right to defense" is a litigation principle determined by the fundamental law of the country, while the criminal procedure law stipulates that the defense system consists of two aspects: "the defendant has the right to defense and the people's court has the obligation to ensure that the defendant has defense", which complement each other and form a complete defense system. The defendant's right to defense means that the defendant and the criminal suspect have the right to defend themselves according to law, and also have the right to get help from others to defend themselves. Lawyers' defense also helps the people's courts to correctly apply the law and maintain the correct implementation of the law. The right of defense granted by law to criminal suspects and defendants is the embodiment of litigation democracy. Under no circumstances shall the personal rights of criminal suspects and defendants be restricted or deprived in any form. Criminal suspects and defendants have the right to entrust lawyers who meet the requirements of the criminal procedure law as their own defenders to defend themselves, and the aforementioned legislation limits the right to entrust lawyers to defend themselves. (4) Regardless of regional differences, it affects the survival of lawyers. Since the implementation of the evasion rule, the impact seems to be even greater. The implementation of the "avoidance rule" has brought negative effects on the business development of some lawyers, and even seriously endangered their professional reputation. The negative impact of the regulations even affects the lives of some lawyers.
Fourth, avoid the judges in the topic. According to the withdrawal regulations, judges refer to presidents, vice presidents, members of judicial committees, presidents, vice presidents, judges and assistant judges of people's courts at all levels. "Other court staff" refers to the staff who occupy the administrative establishment of the court. In addition, the withdrawal of people's jurors, clerks, translators, judicial experts, inspectors and executors in the process of execution shall be implemented with reference to the relevant contents of the withdrawal of judges. Whether a certain kind of personnel should avoid should be given the right of choice, and some reasons for avoiding need to be put forward by the parties, otherwise the court can't elaborate. We can improve the notification system for relevant personnel to participate in judicial activities. For example, criminal suspects, defendants or other parties should be informed of the list of judicial appraisers who have accepted the entrustment. If they put forward and there is evidence to prove that they are avoiding, they should avoid it directly and don't waste energy, so as not to be considered as avoiding after making an appraisal.
Fifth, procedural avoidance. According to the provisions of Article 3 of the Avoidance Regulations, any judge who has participated in the trial of this case in one trial procedure shall not participate in the trial of other procedures in this case. The main purpose of this article is to prevent the judge from prejudging because of the possible "inner conviction", so as to avoid the suspicion of the parties, so that the judge who participated in the trial of the first instance can no longer participate in the trial of the second instance of the case even if he is transferred to the higher court for some reason; In a case remanded for retrial, the judge who originally tried the case may not participate in the retrial of the case because he participated in the original trial, and so on. According to the legislative spirit of the challenge provision, the author thinks that the clerk of the original trial who sent the case back for retrial should not participate in the retrial of the case. However, in judicial practice, considering the familiarity and the shortage of clerks in many grass-roots courts, the same clerk will often make records, so that the clerk accompanying the case can be "from beginning to end" and the clerk and people's jurors will be avoided on the grounds that the third article of the challenge provision only mentions "judge" but not "clerk". Refers to the withdrawal of a judge. Moreover, according to the provisions of Articles 192 and 206 of the Criminal Procedure Law, the members of the collegiate panels of the first and second instance of the cases remanded by the people's court in the original trial and the cases retried by the people's court in accordance with the trial supervision procedure all belong to the scope of withdrawal. Therefore, in judicial practice, this practice of making the clerk "single-minded" essentially violates the legal provisions and judicial interpretation.
Sixth, legal responsibility. According to Article 8 of the Avoidance Regulations, if a judge knowingly fails to voluntarily withdraw according to law or fails to make a decision on the withdrawal of an application that meets the requirements for withdrawal, or knowingly fails to make a correct decision on the withdrawal of an agent ad litem or a defender in accordance with the regulations, he shall be punished in accordance with the provisions of the Disciplinary Measures of the People's Court (Trial).