Professional Relationship between Lawyers and Judges: Conflict or Cooperation? Is it dialogue or confrontation? Communication or evil? Is it reporting or tolerating? Cooperate with the trial or protect the law Are you willing to be led by power or dare to expose the inside story of justice? Should we resolutely protect the legitimate rights and interests of the defendant or sacrifice part of the defendant's interests in exchange for a lighter punishment? Do you turn a blind eye to the illegal acts of judges or dare to report the illegal acts of judges? This is a difficult problem for many lawyers, a problem that puzzles many lawyers, and a topic that many lawyers can't cope with.
2065438+001October 12 In the trial of Guiyang Li Qinghong et al., four lawyers were dismissed by the judge, and a dozen lawyers were reprimanded by the judge one after another. In an instant, the professional relationship conflict between lawyers and judges has become the focus of public attention. Supposedly, lawyers and judges are two-way interactive legal subjects in the legal profession. Their value orientation and pursuit should be to find out the facts of the case and handle the case fairly. The special feature of Li Qinghong and others involved in the triad case is that the judge turned to the procuratorate and the public security, and the court was forced to go to Liangshan. Here, in the early stage of the trial, the judge expects the lawyer to cooperate with the court in order to complete the trial "smoothly". However, why do some judges think that lawyers should cooperate with the court? In Li's case, this is because the judge thinks that there is almost no possibility of acquitting the defendant in his own trial, and the lawyer should make a difference in the severity of the crime and should not "entangle" the innocent defense. The Li case is exactly what lawyers think does not constitute a crime, and the judge will not be acquitted. So there is a difference between a lawyer and a judge. But since there are differences, judges should pursue trial justice and substantive justice with procedural justice. However, the xiaohe district court has repeatedly insisted that lawyers think defending Li is "destructive". In this way, all kinds of appeals and dismissal of appeals in the trial process will easily lead to fierce differences between them, which will lead to a series of contradictions and conflicts.
Supposedly, the judge should have thanked the lawyer for questioning and cross-examining the facts and evidence of the case, so as to better find out the facts of the case and make a fair judgment, and also to avoid the judge being blinded by the selective accusation of the prosecution, leading to misjudgment. However, in the Li case, there are many judges and prosecutors in the same room, and they are all dealing with lawyers together. The duty of a judge to find out the facts of a case and make a fair judgment has been lost, and it has become the same as public prosecution and prosecution. In this way, the judge will inevitably think that lawyers create trouble by accusing the court proceedings of violating the law, thus generating an acquired dislike for lawyers. Then, the vicious incident of punishing and expelling lawyers is bound to happen.
In addition, what role should lawyers and judges play? Is there any unreasonable basis for the judge to ask the lawyer to cooperate in the trial of the case? If the lawyer does not cooperate, can the judge punish or expel the lawyer? What exactly is the duty of a judge in a trial? What should be the role of a lawyer? Is there a serious difference between the two in the trial of cases? Does the judge preconceived that it is unreasonable for lawyers to plead not guilty in trial cases? Do lawyers think that if a judge perverts the law, he will certainly accuse the procedure of violating the law? These problems are the focus that we must face and respond to in order to clarify the four differences between lawyers and judges.
In our cognition, the judge's duty is to find out the facts of the case on the balance of trial and make a fair judgment according to law. Before deciding a case, a judge should not be partial to any party, but should be impartial and judge in the middle. We should try the case independently and fairly, and make a judgment based on law and conscience. The dignity of the judge is also reflected in his ability to grasp the outcome of the case, not in the interference of power. The outcome of the case is decided by others, and he acts as the target of power. Since the judge can't take sides in the trial of a case, of course, he can't ask the lawyer to cooperate with the court in the trial, but should ask the lawyer to handle the case according to law.
The lawyer's role is to present the evidence of the defendant's innocence and light crime according to law, so as to help the judge find out the facts of the case, cross-examine and confront the criminal facts accused by the prosecution and the evidence materials submitted according to law, so that the judge can gradually clarify the facts of the case and get closer to the truth step by step, thus making a fair judgment. Lawyer is an effective questioner for the judge to find out the case, and also the best stopper to prevent the judge from misjudging the case. Lawyers believe that judges should sue for misinterpreting the law. Although the complaint may not be answered, the exercise of procedural rights cannot be waived. Even if there is a glimmer of expectation, lawyers should make 100% efforts to ensure that the legitimate rights and interests of the defendant are not infringed.
However, in some cases where the status of the prosecution and the defense are not equal, the judge cannot control the fair trial of the trial procedure. When procedural justice is not guaranteed, can lawyers accuse the judge of favoring the prosecution and refuse to defend on this ground? This situation also happens from time to time in our judicial practice. Taking Li Qinghong's case as an example, many lawyers questioned that the trial level of xiaohe district People's Court was illegal. This case should not be tried by xiaohe district court, but by Guiyang Intermediate People's Court. Here, the first disagreement arises between lawyers and judges. This disagreement is a prerequisite for procedural justice. Without legal trial level, there will be no substantive justice. On this basis, many lawyers complained one after another, but the judge just ignored them. Therefore, the judge also gave several lawyers disciplinary action. This sends us a signal, that is, how to make lawyers respect court procedures after judges break the law? How can an illegal court trial strive for substantive justice? Because, the judge must first ensure the procedural justice of the trial with his own authority, and then he can ask the lawyer to respect the trial order. If the trial procedure is illegal in the first place, the lawyer's complaint lies in ensuring the fairness of the procedure, not making trouble without reason. The debate about whether Weibo can "broadcast" the trial was also made public. The judge expects that the trial will be ignored, and he can try it with peace of mind, while the lawyer thinks that the illegal trial should be announced to the whole world to curb the continuation of the illegal trial. This is the second disagreement between Li Qinghong and others about the triad case. On the surface, this difference lies in the misunderstanding of the law, whether to obey the power or handle the case according to law. According to the principle of open trial, why can't lawyers broadcast information to the outside world, together with cases that journalists and outsiders can hear? If the information broadcast by lawyers is exaggerated or misleading, the court can punish it completely. The trial information broadcast live by lawyer Weibo only records the general situation of the trial, which can be completely equivalent to the trial experience. Accordingly, it should not be restricted, but the xiaohe district court still takes restrictive measures. Such differences arise not because of different ideas, but because the judiciary is always afraid of being caught by people after being subject to power.
Furthermore, apart from individual misunderstandings about the law, the differences between lawyers and judges are more focused on the "institutional humiliation" caused by the fact that the judiciary is subject to power, the judiciary is not judicial, and the judiciary deviates from the judicial purpose. As a result, the difference between lawyers' pursuit of justice and judges' judicial injustice subject to power is getting bigger and bigger. How to calm down and mediate the differences between lawyers and judges? The proper place is that justice becomes real justice, and judges exercise judicial power independently. The outcome of the case can be decided by the judge, and the outside world cannot or cannot interfere in the case. The rhetoric of "it is normal for leaders to intervene in cases" is completely evidence that the judiciary is willing to get their hands on power. In the face of a fair judicial trial, why can lawyers accuse judicial injustice for no reason or for no reason? Of course, we don't rule out that individual lawyers can find other ways to solve cases by dredging their relationships, but in the eyes of many lawyers, it is lucky to meet a good judge who speaks the law, understands the truth and can handle cases.
Finally, we analyze the differences between lawyers and judges, of course, hoping to find the same value orientation and career pursuit while reconciling the differences between them. They stand on the same legal starting line, with one party leading the outcome of the case and the other helping the parties to deal with legal disputes. Its purpose is to find out the facts of the case and return a fair result to the parties. The judge guarantees substantive justice through procedural justice, and the lawyer assists the parties to realize the fair result of the case through procedural affairs. Under the framework of "two-party construction", lawyers should handle cases according to law, and must not do anything that violates lawyers' professional ethics and discipline, fully protect the legitimate rights and interests of the parties and strive to maximize the interests of the parties. Judges also try cases according to law and must not take sides. He treats each party fairly and fully protects the legitimate rights and interests of each party, thus promoting the procedural justice of the case and realizing substantive justice. This is the normal relationship between lawyers and judges. Although it is ideal, it is the direction we should strive for. Although it has transcendental significance, it is the top of the ideal form we should pursue.