How to be a good presiding judge

Article 10 of the Organic Law of the People's Court stipulates: "The collegial panel shall be presided over by the president or a judge appointed by the president. When the president or the president participates in the trial of the case, I am the presiding judge. " The sixth paragraph of Article 147 of the Criminal Procedure Law and Article 42 of the Civil Procedure Law have also made the same provisions as the Organic Law of the People's Court. This shows that the presiding judge is not a fixed title, but a temporary position appointed by the president or the president when he forms a collegiate bench according to the needs of trial cases. Therefore, the presiding judge exists relative to the collegiate bench, and is the judge who is responsible for organizing pre-trial, trial, case evaluation and other activities when the people's court forms a collegiate bench to hear a case. According to the relevant provisions of China's three major procedural laws, the main duties of the presiding judge are: First, organize the members of the collegiate bench to make preparations before the trial, such as exchanging evidence before the trial, determining and informing the parties of the list of members of the collegiate bench, determining the date of the trial, posting the notice of the trial, etc. Second, during the trial of a case, it is responsible for checking whether the parties and their litigation agents appear in court, checking the basic situation of the parties, announcing the cause of action, informing the parties of their litigation rights and obligations, announcing the list of members of the collegial panel, clerks, prosecutors, defenders, experts and translators, asking the parties whether to apply for the withdrawal of the members of the collegial panel, and informing the defendants of their right to defense. Third, in the trial, guide the parties to give evidence and cross-examine in the court investigation stage, preside over the collegial panel members to authenticate the evidence adduced by the parties and the evidence of the defendant's guilt accused by the criminal prosecution agency, summon relevant witnesses, experts and inspectors to testify in court according to law, show the evidence collected by the court according to its authority, and read the testimony of witnesses who did not appear in court; Presided over the court debate, court mediation and court verdict, and announced the adjournment. The fourth is to preside over the members of the collegial panel to comment on the verdict of the case. The fifth is to review and issue relevant judgment documents. It can be seen that the presiding judge is the core figure of the collegiate bench of the court trial organization, the gatekeeper of the trial quality and the leader of judicial justice. Therefore, this issue is very important for the trial work, which is not only of practical significance for ensuring the quality of the trial, but also of great significance for the court to establish a fair judicial image. Especially in the current situation of promoting judicial reform and promoting judicial justice, this problem is more prominent. From my personal trial practice, the author believes that a qualified and competent presiding judge should have the following qualities and abilities: First, he must have the qualities of political firmness, professional proficiency, decent style and rigorous organization. Because the presiding judge is the organizer of the trial activities and the convener of the collegial panel, he must first possess the above qualities. Among them, political firmness means that the presiding judge must have good political quality, including political stance, ideological style, moral quality and sense of justice. The court is a national judicial organ and an important part of the state machine, which determines that the work of the court must focus on and serve the overall situation of the party and the state, and be fair in justice. This requires the presiding judge to have a firm political stance, excellent ideological style, fair and just consciousness and pioneering spirit, so as to consciously serve the cause of the party and the interests of the people in the trial work. Proficient in business means that the presiding judge must have good professional quality, including the level of legal professional knowledge, rich experience in trial practice and the ability to solve practical problems in trial work by using the legal knowledge he has mastered; At the same time, we should have a solid theoretical foundation of law and constantly update our theoretical level of law, so as to enhance our ability to understand, apply and make up for legal defects. Decent style means that the presiding judge should have a good trial style. Civilized law enforcement, fair handling of cases and honesty are the basic qualities that people's judges should have, and they are also the basic requirements for a good trial style. The work of every presiding judge should not be underestimated, because it is directly related to the overall image of the people's court. Strict organization means that the presiding judge should have strong organization and coordination ability and contingency ability in judicial activities. The collegial panel is a first-class trial organization. Its normal and efficient operation is inseparable from the organization and coordination ability of the presiding judge. Good organization and coordination ability not only effectively grasps the main line and principal contradiction of the trial, but also fully mobilizes the enthusiasm of all aspects of litigation activities, which is conducive to the use and play of the talents of other judges in the collegiate bench, thus improving the efficiency of trial work and the quality of handling cases. Second, we should cultivate and establish the personality of judges. Respecting the law should be a judge's common sense and responsibility. However, under the condition that the judicial power system is still subject to the executive power, it is more important and valuable for judges (especially the judges who serve as presiding judges) to cultivate and establish this kind of judge personality. Judge's personality is actually an independent personality of judges, which comes from the provisions and authorization of the national constitution and laws. Article 126 of China's Constitution stipulates: "The people's courts independently exercise judicial power in accordance with the law and are not subject to interference by administrative organs, social organizations and individuals." Article 4 of the Organic Law of the People's Courts, Article 5 of the Criminal Procedure Law, Article 6 of the Civil Procedure Law and Article 3 of the Administrative Procedure Law also stipulate the principle of independent trial of the people's courts, just like the Constitution. Article 3 of the Judges Law stipulates: "Judges must faithfully implement the Constitution and laws and serve the people wholeheartedly." This shows that the principle of independent trial of courts established by the Constitution and laws is realized by independent trial of judges. When talking about the status of judges, Marx specifically pointed out that "judges have no boss except the law." Its meaning is to emphasize that judges only obey the national constitution and laws and do not obey the will of any leader. According to the provisions of Article 2 of the Measures for the Selection and Appointment of the Chief Judge of the People's Court (Trial), the chief judge is the organization and host of the collegial panel and the undertaker of the case. Therefore, it is necessary and meaningful for the presiding judge to cultivate and establish this kind of judge personality that only respects the law: one can defend the constitutional principles and legal dignity; Second, be able to enforce the law impartially and handle cases; Third, it can influence and promote other judges to serve the country and enforce the law for the people; Fourth, we can carry forward the spirit of the rule of law, that is, neither instigation nor interference inside and outside the judicial organs can influence and dominate the conviction and will of judges to abide by the law. Third, we should cultivate and establish humanistic thoughts and moral qualities that treat each other equally, justly and honestly. The judge's duty is to remedy and restore all kinds of damaged social relations with fairness and justice in the legal sense, which means and determines that judges must treat all litigants equally (including defendants in criminal proceedings), judge and handle cases fairly according to law, and there is no prejudice or discrimination. The so-called balance on the shoulder is filled with justice, not for money, but for the law, that is, it emphasizes that judges can only judge in the middle from a just and detached position and preside over justice and fairness. In the era of rule of law, the principles and beliefs of fairness and justice are the core content of judges' professional ethics. Humanism advocates freedom, equality and fraternity, which is the basic idea of modern democratic politics, law and judicial system. For example, the Declaration of Human Rights of 1789 declares that "the law is the same for all people, regardless of protection or punishment. All citizens are equal before the law. " This judicial principle is the soul of judicial trial. China's litigation system and judicial principles also carry out its contents and principles. For example, Article 6 of the Criminal Procedure Law stipulates: "All citizens are equal in applying the law and are not allowed to have any privileges before the law"; Article 8 of the Civil Procedure Law stipulates: "All parties are equal in the application of law." The Judges Law emphasizes that judges must "serve the people wholeheartedly", and President Xiao Yang of the Supreme Court demands that "the judicial activities of people's courts are the last barrier to protect people's rights and realize social justice". These legal provisions and requirements reflect the importance of judges respecting human rights and the rights and status of litigants. If a judge, especially the presiding judge, is arrogant, despises the weak, scolds others at every turn and abuses power for personal gain, it will be difficult to serve the people wholeheartedly and administer justice fairly. Therefore, it is of great practical significance for the presiding judge to cultivate and establish this kind of humanistic ideology and morality: first, it is clear to listen to it and prevent the bad result of listening to it; Second, the judge's unique personality of treating others equally and upholding justice can drive and promote the realization and application of national laws, and achieve the social effect of persuading the parties when handling cases in trial practice. Because the correct and effective implementation of the law is reflected by the role of judges and lawyers, the judge's good personality and behavior will naturally affect the parties' recognition and obedience to the legal value, and the public will also respect and trust the judge; Third, it can effectively safeguard judicial justice and the authority of the people's courts and prevent judicial corruption. Generally speaking, a judge with equality and justice will not easily accept bribes from the parties, especially those who lose the case. Personality plays a decisive role in human self-discipline, and personality is the most valuable and reliable factor in human self-discipline, which has been proved by many practices. Judges have equal, just and upright humanistic thoughts and morality, which does not hinder and influence judges to punish crimes and illegal acts according to law. On the contrary, punishing and cracking down on illegal and criminal acts precisely reflects the life value of judges' equality, justice and integrity. Fourth, we should cultivate and master the command ability to control trial activities. The presiding judge is the commander who controls the trial. A trial is like a class, and the presiding judge is like a teacher. Whether the trial is held well depends on the presiding judge's ability to organize, direct and control the trial, especially the situation in which the teacher organizes and presides over the class. In the trial, court investigation is the core, and its main duty is to examine and check all kinds of evidence in order to find out the case and accurately determine the facts. Court debate is the key point, which is to organize the parties to put forward their own opinions and state their opinions on the facts and evidence investigated by the court, so as to find out the facts and distinguish right from wrong. Court review is the key, which enables members of the collegiate bench to correctly apply the law and make a fair judgment on disputes in litigation under the auspices of the presiding judge according to the facts of the case. Then, as a well-known presiding judge, how to grasp all aspects of the trial, the disputed facts of both parties, whether the defendant in criminal proceedings constitutes a crime and the applicable legal issues, examine the inherent dialectical relationship between various evidences provided by the parties, and find scientific and correct handling opinions from the identification of evidence, facts and applicable laws are the professional abilities and qualities that every presiding judge must possess. The author understands from personal trial practice that a presiding judge must do the following in court trial: First, strictly distinguish the boundary between court investigation and court debate. The problem to be solved in court investigation is to examine the facts and all kinds of evidence that the public prosecution agency accused the defendant of committing a crime, and the opinions and all kinds of evidence provided by the parties in civil and administrative proceedings. After cross-examination in court, the collegial panel will scientifically certify the effectiveness of all the evidence provided; The problem to be solved in court debate is to let both parties (including defendants in criminal proceedings) briefly state their opinions on the disputed facts and defend, demonstrate and reason, so that the judge can be more aware of the nature of the case. Therefore, the functions and functions of court investigation and debate are obviously different. Second, we must grasp the key points of court investigation and the main issues of case disputes. The effect of a trial, whether the presiding judge has the level and skills, depends on whether the presiding judge can grasp the controversial focus of the case, guide the parties (including the public prosecution agency) to give evidence and cross-examine, so as to clarify the case, not be confused by the evidence problems unrelated to the case, and the controversial focus is not prominent. Third, we should carefully examine and check the evidence and scientifically cross-examine and identify it. Cross-examination and authentication in court trial are the focus and core of court investigation, which is related to whether the facts of the whole case are ascertained. Generally speaking, the presiding judge usually adopts the practice of "one case, one certificate, one quality and one recognition" for the evidence adduced by the parties in the trial or the evidence presented by the public prosecution agency in the trial. For example, in a civil lawsuit, if one party has no objection to the evidence adduced by the other party, the presiding judge shall solicit the opinions of other members of the collegial panel during the appraisal, and shall promptly take the evidence as the basis for finalizing the case. If one party disagrees with the evidence adduced by the other party, the presiding judge shall guide the dissenting party to give evidence or give evidence within a time limit, otherwise, the presiding judge shall make a determination that the objection is not established. But at present, many presiding judges have objections to the evidence presented by the other side. The usual practice is to make an appraisal after being investigated, which is detrimental to the function and role of the trial. Whether in court or out of court, the presiding judge must make a correct judgment and authentication in time according to the internal relationship between the facts and evidence of the case, that is, authenticity, legality, relevance, probative force and the relationship between the objects of proof. It should be pointed out that the presiding judge should explain the reasons and basis of the evidence confirmed in court as the basis for deciding the case, and only by scientific authentication and timely and appropriate reasoning can the parties be convinced. 5. We must scientifically identify the facts and apply the law accurately. China's judicial principles emphasize the principle of "taking facts as the basis and law as the criterion" and the principle that whoever advocates gives evidence. For example, Article 64 of China's Civil Procedure Law stipulates that "the parties have the responsibility to provide evidence for their own claims; Article 32 of the Administrative Procedure Law stipulates that "the defendant (administrative organ) bears the burden of proof for the specific act", and Article 157 of the Criminal Procedure Law stipulates that "the public prosecutor and defender shall present the material evidence to the court for the parties to identify." We know that in the trial of a case, the evidence is not all facts, because the evidence is divided into true and false, and the facts reflect the objective existence of the case, including the evidence. In the trial, the facts of the case are checked and the evidence of the case is identified. Therefore, in order to scientifically identify the facts, we must find out the internal relationship between all kinds of evidence on the basis of the evidence identified in court, so as to find out the inevitable relationship between the evidence and the facts. Only in this way can we find out the factual evidence as the final verdict, find the facts accurate, and correctly apply the legal provisions to judge the case. But the application of the law also pays attention to its scientificity and accuracy. There are complex relationships between laws and between laws and regulations. However complicated it is, the principle of its application is: the fundamental law is more effective than the common law, and the law is more effective than the administrative regulations, but under the premise of not violating the fundamental law, the specialized and departmental regulations take precedence. Therefore, the classic writer Bacon pointed out in On Justice: "Judges should remember that their function is to interpret the law rather than create it", which means that judges can only apply the law accurately. No matter whether the facts are ascertained or the law is applied, the presiding judge must implement the principle of democratic centralism, that is, ask questions about the focus of disputes between the two parties and whether the defendant constitutes a crime in criminal proceedings, guide other members of the collegial panel to fully express their opinions on the facts of the case and the application of the law, and then put forward reasonable opinions and opinions on the basis of democratic appraisal, so as to make the judgment result of the case truly clear in fact, accurate in nature, appropriate in application of the law, and stand the test of time and facts.